$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 194/2011& CM 7726/2011(stay)
% 14.02.2014
SUNDARAM FINANCE LIMITED ..... Appellant
Through Mr. K. Venkatraman, Advocate
versus
RAKESH KUMAR & ANR. ..... Respondents
Through CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one appears for the respondent no. 1 in spite of service. Respondent no. 1 has not been appearing even earlier and he was proceeded ex-parte vide order dated 26.3.2012.
2. This first appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 impugning judgment of the court below dated 31.01.2011 which has allowed the objections by setting aside the impugned FAO No.194/2011 Page 1 of 3 Award dated 18.3.2006 and remanded the matter to the arbitrator to decide afresh in accordance with law on the ground that the objector/respondent no. 1 herein was allegedly not served in the arbitration proceedings.
3. The relevant para of the impugned judgment is para 10 and which reads as under :
"I have gone through the record file of the arbitration in this regard. The record though postal receipts have been filed by the arbitrator showing that the copy of the notice and arbitration proceedings were sent to the petitioner and the same were duly served upon the petitioner and an AD card with respect to the same is also on the record. The arbitrator in my opinion came to the conclusion of having received the AD card. I have gone through the AD card filed by the arbitrator on record. This AD card does not either show the full address of the petitioner rather simply bears the name of the petitioner and nothing else. To my opinion, it is the duty of the Arbitrator to have filled the proper address, address of the respondent/petitioner herein, so as to avoid any controversy in this regard. When the very base of service with respect to the arbitration proceedings is under challenge and the petitioner submitted on affidavit that he has not received any notice of the arbitration proceedings. I am of the considered opinion in view of the discussion above that the petitioner was not served with the notice of the arbitration proceedings. Ld. Counsel for the petitioner submits that he has a good case on merits and in case the award is not set aside, he shall suffer irreparable loss and injury in this matter."
4. In my opinion, the findings of the court below are wholly illegal inasmuch as it is well known that postal department when it issues the receipts or even in the AD cards, complete address is not mentioned. I take judicial notice of the same. The complete address is only mentioned on the postal cover. This is the practice almost in 100% of the cases because the FAO No.194/2011 Page 2 of 3 postal receipts only give the name of the addressee and the city where the addressee lives. I have seen the postal receipts and the notices which were sent by the appellant company to the respondent no. 1 who was the guarantor of the loan, and it is clear that the respondent no. 1 was sent notice of arbitration proceedings yet he did not appear. Mentioning of incomplete addresses on postal receipts is not enough to hold that the respondent no. 1 was not served in the arbitration proceedings.
5. Since respondent no. 1 in spite of notice failed to appear in the arbitration proceedings, the impugned Award dated 18.3.2006 was passed in favour of the appellant finance company for the loan which was given to one Sh. Joginder Singh, and for which loan the objector/respondent no. 1 had stood as a guarantor.
6. In view of the above, the appeal is allowed and the impugned order dated 31.1.2011 is set aside by dismissing the objections under Section 34 and upholding the Award dated 18.3.2006. CM 7726/2011 is also accordingly disposed of. Parties are left to bear their own costs.
FEBRUARY 14, 2014 VALMIKI J. MEHTA, J
godara
FAO No.194/2011 Page 3 of 3