Tata Motors Finance Limited vs Ramdeo Pandit

The Court : Learned counsel appearing on behalf of the award-holder has relied upon a reported Division Bench judgment of this Court being Magma Fincorp Limited vs. Ashok Kumar & Ors. reported in 2018(1) CHN (Cal) 391, dated 13th September, 2017, where the Hon'ble Division Bench had considered the aspect of service of award upon the judgment-debtor. In deciding the said application, the Hon'ble Division Bench has referred to Clause 9(b) of the arbitration agreement between the parties in the said proceeding, Section 114 of the Indian Evidence Act, Section 3 of the Arbitration and Conciliation Act and Chapter VI of the Indian Post Office Act, 1898. Similar clause as that of 9(b) that was considered by the Hon'ble Division Bench is present in the instant arbitration agreement. The records revealed that the envelopes said to contain the award was forwarded by the Arbitral Tribunal by a letter dated 4th January, 2017. The envelope was addressed to the respondents at the addresses mentioned in the arbitration agreement and proper stamps were affixed thereon. The Arbitrator has also paid postal charges by affixing prepaid adhesive postage stamps and the postal article duly put in by registered post in the manner provided in Chapter VI of the Indian Post Office Act, 1898. The postal envelop said to contain the said award was despatched on 10th January, 2017. Hence having regard to the fact that the award was sent to the last known address of the judgment debtors, it shall be presumed that the award has been duly served upon the judgment debtors. The time to challenge the award has, in the meantime, expired. It is submitted on behalf of the petitioner that the award is not under challenge.

Under such circumstances, it shall be presumed that the award has been duly served upon the judgment-debtors. In view of the Hon'ble Division Bench judgment and having regard to the factual position as discussed above, in my view, the award-holder is able to demonstrate service of the award upon the judgment-debtors. The award is less than two years old.

The petitioner submits that the financed asset was taken possession by the joint receivers appointed by this Hon'ble Court in proceedings under Section 9 of the Arbitration and Conciliation Act, 1996. By an order dated 9th November, 2017 the said proceeding under Section 9 was disposed of in view of award passed in the arbitration proceedings. Joint receivers were discharge. The petitioner is praying for appointment of a receiver over the said asset and an order of sale of the said asset.

Mr. Biswabrata Basu Mullick, Advocate, is appointed as Receiver. There shall be an order in terms of prayer (a) of column 10 of the tabular statement.

The receiver shall be entitled to an initial remuneration of 1500 Gms. to be paid by the petitioner and all expenses on account of the receiver's travel, accommodation and the like shall be borne by the petitioner at the first instance and shall be added to its claim in the execution proceedings.

The receiver shall file a report on the adjourned date.

The matter is made returnable on 22nd January, 2019.

The petitioner shall communicate this order along with a copy of the application upon the judgment-debtors within a week from date and shall file the affidavit of service on the adjourned date.