Delhi High Court
Srgp Industries Ltd. vs M/S. Currie & Brown (India) Ltd. on 4 November, 2008
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (OS) No. 478/2007
RESERVED ON : October 21st , 2008
% DATE OF DECISION : November 4th, 2008
SRGP INDUSTRIES LTD. ..... Appellant
Through: Mr. Arun Kathpalia with
Ms. Garima Prashad and
Ms. Neha Goyal, Advocates
Versus
M/S. CURRIE & BROWN (INDIA) LTD. ..... Respondent
Through: Mr. Neeraj Gupta,
Advocate
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?
JUDGMENT
MANMOHAN, J:
1. The present appeal has been filed for setting aside the order
dated 2nd November, 2007 passed in an application under Order 9 Rule
13 CPC being IA no. 12521/2007 in Arbitration Application No.
250/2007.
2. Learned Single Judge by virtue of the impugned order refused to
recall his earlier order, dated 22nd October, 2007, by which he had
disposed of the Section 11 Petition filed by the Respondent, by
appointing an Arbitrator. The raison d'etre behind the impugned order
is that the Appellant had refused to accept service of summons and
even though service was effected by pasting of summons on 22nd
August, 2007, none had appeared for the Appellant before Court on
22nd October, 2007.
3. Learned Counsel for Appellant, Mr. Kathpalia, has contended
that the non-appearance before the learned Single Judge was
inadvertent and was owing to a wrong noting of date by its Counsel.
Learned Counsel stated that the Appellant had received the Section 11
Petition by courier but as no summons were annexed with the same,
the Appellant was not aware of the next date of hearing. Mr. Kathpalia
further contended that as the Appellant has its office in Kanpur, it
immediately sent a copy of the said application to its Counsel at Delhi
with instructions to find out status of the case and prepare an urgent
reply. It was the Counsel for the Appellant who somehow by mistake
noted the next date of hearing as 23rd October, 2007 instead of 22nd
October, 2007. An extract of the daily diary of learned Counsel for
Appellant has been filed in which the date of hearing has been noted
as 23rd October, 2007. Learned Counsel for the Appellant has further
argued that this Court has no territorial jurisdiction to entertain and
adjudicate the Petition under Section 11 of the Arbitration and
Conciliation Act, 1996 as only the Courts at Kanpur have territorial
jurisdiction. In this connection, he referred to Clause 11 of the
Consultancy Agreement executed between the parties.
4. On perusal of the record, we find that notice had been issued to
the Appellant in the Section 11 Petition on 13th July, 2008. In the said
Petition the Respondent had averred that this Court has territorial
jurisdiction inasmuch as the agreement between the parties has been
executed in New Delhi. The report of the Process Server was that the
concerned official of the Appellant had refused to accept summons and
therefore, the same were pasted on 27th August, 2007. The
Respondent's Clerk had also filed an affidavit stating that a copy of the
notice had been sent by courier. When a query was put to learned
Counsel for Appellant as to why the official of the Appellant had
refused to accept summons, learned Counsel stated that as the
Managing Director of the Appellant company was not available, service
was not accepted.
5. We are of the view that service of summons would become
difficult if not impossible in case it were to be held that summons could
only be received by a Managing Director of a company. Since the
Appellant has deliberately refused service of summons, it certainly is
not entitled to any sympathy or equitable consideration from this
Court. We are further of the opinion that the Appellant's Counsel was
neither negligent nor has she committed a mistake as it is not a case
of wrong noting of date but a case of refusal of service of summons for
which alone the Appellant has to be faulted with. In any event, in view
of Process Server's report that summons had been pasted, we are of
the view that the Appellant could derive no assistance from the wrong
noting of the date by the Appellant's Counsel as there was no prior
hearing in which Appellant's counsel had appeared. Service by courier
was only an additional methodology of service employed by the
Respondent. They were not legally bound to do so. The plea of lack of
territorial jurisdiction has been considered by the learned Single Judge
in its original order dated 22nd October, 2007 by relying on the Clause
12 which provides for arbitration at Delhi.
6. Since the learned Single Judge by virtue of the impugned order
has only appointed an Arbitrator, we are of the view that no prejudice
has been caused to the Appellant. In fact, the conduct of the Appellant
in the present proceedings shows that its intent was only to delay and
protract the present proceedings.
7. Consequently, the present appeal being devoid of merits is
dismissed but with no order as to costs.
MANMOHAN, J
MUKUL MUDGAL, J
th
November 4 , 2008
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