all appeals Original side appeals preferred under Order XXXVI Rule 9 of the Original Side Rules, Clause 15 of the Letters Patent read with Section 37 of the Arbitration and Conciliation Act, 1996, against the order of this Court made in Tr.O.P.Nos.432, 441, 442 and 443 of 2006 dated 13.8.2007.
For Appellant : Mr.K.Muthukumaraswamy For Respondents : Mrs.Radhika Krishnan for M/s.Sarvabhauman Associates for R1 COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) All these appeals challenge a common order of the learned Single Judge of this Court made in Tr.O.P.Nos.432, 441, 442 and 443 of 2006 whereby all those petitions seeking to set aside the arbitral awards dated 30.4.1999, made by the third respondent arbitrator, were dismissed.
2.The impugned order came to be passed under the following circumstances:
(a) The appellant/petitioner entered into separate hire purchase agreements dated 4.2.1995, with the first respondent in respect of 1994 Model Mitshibushi Canter vehicles, and the second respondent stood as guarantor. The petitioner agreed to repay the entire amount in 36 monthly instalments in each case. In view of the default committed in making the instalment payments as agreed upon, the first respondent took possession of the vehicles and sold the same, and the sale proceeds were given credit to the accounts of the appellant. Demands were made for the balance. Since the demand was not met, the first respondent referred the matter for arbitration on 13.3.1998, in respect of arbitration case Nos.23 and 24/98 and on 12.8.1998 in respect of arbitration case Nos.72 and 73/98.
(b) After the matter was referred to arbitration, the arbitral tribunal sent notices to the parties to appear before the arbitrator on 17.4.1998, in respect of arbitration case Nos.23 and 24/98. But, the appellant and his guarantor namely the second respondent, did not turn up. Hence the first respondent made the claim statement on 14.8.1998, and copies of those statements were sent to the appellant and the second respondent along with the notices for their appearance on 11.9.1998. The appellant received the notice; but, the notice sent to the second respondent was returned as not claimed. Then the arbitral tribunal directed the claimant to take steps to serve the same on the appellant and the second respondent by way of substituted service by publication in Andhra Prabha circulated in Hyderabad for the hearing namely 9.10.1998. Despite publication, they did not appear. Hence on 9.10.1998, the arbitral tribunal set the appellant/petitioner and the second respondent ex-parte and proceeded further.
(c) Insofar as arbitration case 72 and 73/98, notices were issued to the parties for their appearance on 18.9.1998 but returned unserved with an endorsement "not claimed". On 23.10.1998, claim statements were filed in both the cases. Notices along with the claim statements were sent to the appellant and the second respondent requesting them to appear on 20.11.1998, for filing their objections. The appellant received notice; but the notice sent to the second respondent was returned as not claimed. Pursuant to the order for substituted service to be effected in Andhra Prabha by fixing the date for appearance of the appellant and the second respondent on 18.12.1998, publication was effected; but, the parties did not appear.
(d) Under the above stated circumstances, the arbitral tribunal examined P.W.1 in all the cases and marked exhibits. On scrutiny of the evidence both oral and documentary, the arbitral tribunal passed separate awards to the effect that insofar as the arbitral case 23/98, the appellant and the second respondent were directed to pay to the claimant Rs.1,27,958/- with future interest at 18% per annum from 9.2.1996 till the date of full realisation. As far as arbitral case 24/98 is concerned, the appellant and the second respondent are directed to make payment of Rs.1,13,967/- with future interest at 18% per annum from 29.2.1996 till date of realisation. Insofar as arbitral case 72/98, the appellant and the second respondent have to pay Rs.1,76,765/- with future interest at 18% per annum from 11.6.1996 till realisation. As far as arbitral case 73/98 was concerned, the appellant and the second respondent were directed to pay Rs.1,27,958/- with future interest at 18% per annum from 9.2.1996 till realisation.
(e) When the above OPs to set aside the awards were presented before the Registry, they were returned for presentation before the appropriate Court. Thereupon, the OPs were presented before the City Civil Court on 21.3.2002 and subsequently transferred to this Court.
(f) When the OPs were taken up for enquiry by this Court, the respondents urged that all the OPs were barred by limitation. Then, there was a direction to the arbitrator for the purpose of production of records of the arbitral tribunal before this Court so that the Court could verify whether the original petitions were filed in time with reference to the date of service of the awards. On perusal of the entire records produced by the arbitrator, it was found that there have been acknowledgement cards and also the returned covers with proper endorsements. It was represented to the Court that there was scope for settlement, and hence the Court adjourned the matter to 25.7.2007 and report if settled. But, the talks of settlement did not fructify, and hence the matter was taken up for enquiry. It was contended by the first respondent's side that all the OPs were hopelessly barred by time. Under the circumstances, the Court took the said question for consideration and found that all the OPs challenging the awards were made beyond time and hopelessly barred by limitation and dismissed the petitions. Hence these appeals have arisen.
3.The only question that would arise for consideration is whether the OPs filed seeking to set aside the awards dated 30.4.1999, were bared by limitation?
4.What was all contended before the learned Single Judge and equally here also by the appellant's side is that he received the notices from the Court of V Additional Chief Judge, City Civil Court, Hyderabad, in EP Nos.5, 6, 7 and 8 of 2001; that on enquiry, he came to know that those execution petitions were filed on the basis of the arbitral awards dated 30.4.1999, made by the third respondent in the above arbitral cases 23, 24, 72 and 73 of 1998 respectively; that thereafter, he sent a letter to the arbitrator on 29.9.2001, informing him that he has not received the copies of the arbitral awards and requested that he should be furnished with copies of the same; that the arbitral awards copies were served upon him on 16.10.2001; and that he filed OPs on 17.1.2002, on the reopening of the Court after Christmas holidays. It was his further case that though the arbitral awards were passed on 30.4.1999, they were served upon him only on 16.10.2001; that thereafter, he has filed the petitions after Christmas holidays on 17.1.2002, and thus all the OPs were in time.
5.Contrary to the above, it was contended by the learned Counsel for the first respondent that the petitions were hopelessly barred by limitation, and hence the order of the learned Single Judge has got to be sustained.
6.The Court paid its anxious consideration on the submissions made.
7.Under the aforesaid circumstances, invoking the arbitral clause, the first respondent made its claims against the appellant in arbitral case, 23, 24, 72 and 73 of 1998, and the arbitral awards were made on 30.4.1999. In short, the case of the appellant was that he came to know about the passing of the awards only on service of the notice in E.P.Nos.5, 6, 7 and 8 of 2001 on the file of the V Additional Chief Judge, City Civil Court, Hyderabad, and thereafter, he made an enquiry, and on coming to know about the arbitral proceedings, he sent a communication to the arbitrator on 29.9.2001 requesting him to send copies of the awards, and they were served on him only on 16.10.2001, and on 17.1.2002, immediately after the Christmas holidays were over, he filed the petitions, and thus it was within 3 months from the date of service of the awards in question and thus it was in time. On the contrary, it was contended by the first respondent's side that the averment that the arbitral awards were served upon him only on 16.10.2001 was false; that the service was effected even on 6.5.1999 itself; that the petitions to set aside the awards were not filed within 3 months, but made only on 17.1.2002, and thus it was barred by time. In such circumstances, it has become necessary to decide whether there was service of the awards on the appellant as contemplated under the provisions of the Arbitration and Conciliation Act.
Section 3 of the Arbitration and Conciliation Act reads as follows:
"3.Receipt of written communications:- (1) Unless otherwise agreed by the parties,-
(a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and
(b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.
(2)The communication is deemed to have been received on the day it is so delivered.
(3)This section does not apply to written communication in respect of proceedings of any judicial authority."
8.From the very reading of the above, it would be quite clear that any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, while Sub-clause (b) provides that after making a reasonable enquiry, if none of the places referred to in Sub-clause (a) could be found, a written communication if sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or by any other means which provided a record of attempt to deliver it, should be deemed to have been received. In the instant case, the learned Single Judge on perusal of the materials and records produced by the arbitrator has pointed out that the arbitral awards were sent to the appellant/petitioner to the address given in the agreement namely 102, LIC Quarters, Domelguda, Hyderabad, A.P. Both the cover and the acknowledgement bore the postal seal of Besant Nagar Post Office, Chennai, dated 3.5.1999, and on the other side of the cover there was a postal seal of Gandhi Nagar Post Office of Hyderabad with the date 5.5.1999. An endorsement of the postal authorities on 6.5.1999 as "addressee left" is also seen, and the RPAD covers were returned to the arbitral tribunal. Equally, the awards were also sent to the second respondent by RPAD; but it was returned to the arbitral tribunal. As found in Sub-clause (b), this mode of service is one contemplated in Sec.3(1)(b) of the Act. Thus, the awards were sent by registered post to the appellant's last known place of business. At this juncture, the decision relied on by the learned Counsel for the first respondent and reported in 2009(1) R.A.J. 458(SC) (KAILASH RANI DANG V. RAKESH BALA ANEJA AND ANOTHER) is squarely applicable to the present facts of the case.
9.It is pertinent to point out that originally the notices were sent to the appellant immediately after the initiation of the arbitral proceedings only to the said address. The appellant has also received the same; but the second respondent has returned it as not claimed. This would indicate that the appellant was residing in the said address only. Hence it has to be held that there was a proper service of the awards on him. In such circumstances, the contention put forth by the appellant's side that he came to know about the arbitral proceedings only on the service of notice in the EP proceedings pending on the file of the V Additional Chief Judge, City Civil Court, Hyderabad, and thereafter, he sent a communication to the arbitrator requesting for sending copies of the awards, and he got the copies only on 16.10.2001, and then he filed the petitions within a period of three months cannot be countenanced. Therefore the contentions put forth by the appellant's side have got to be rejected as meritless and accordingly, they are rejected. The order of the learned Single Judge does not require any disturbance in the hands of this Court.
10.In the result, these original side appeals are dismissed confirming the order of the learned Single Judge. The parties will bear their own costs. Consequently, connected MPs are also dismissed.
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