Delhi High Court
Neel Kamal(Deceased) &Ors. vs Citifinancial Consumer Finance ... on 28 November, 2011
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 505/2011
Judgment delivered on: 28th November, 2011
Neel Kamal (Deceased) & Ors. ..... Appellants
Through Counsel for the appellant.
versus
Citifinancial Consumer Finance India Ltd. ..... Respondent
Through Nemo
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR:
KAILASH GAMBHIR, J.
*
1. By this appeal filed under Section 37 of Arbitration and
Conciliation Act, 1996, the appellant seeks to challenge the impugned
order dated 6.7.2011 whereby the learned Trial Court has dismissed
the petition filed by the appellant under Section 34 of the Arbitration
and Conciliation Act to set aside the arbitral Award dated 3.11.2006.
2. The short controversy arising in the present appeal is that the
appellant herein had raised objections under section 34 of the Act to
the award dated 3.11.2006 passed by the arbitrator on the ground that
the appellant was neither served/informed about the arbitral
proceedings nor the award was ever served upon them and they came
to know about the said award only at the time the respondents filed for
execution of the said award, which was dismissed as being barred by
imitation and not maintainable. Feeling aggrieved with the same, the
appellant has preferred the present appeal.
3. Assailing the impugned order, learned counsel representing the
appellant submits that the appellant was never served before the
Arbitrator and, therefore, was illegally proceeded ex parte. Counsel
further submits that the appellant had not received the award as the
same was never delivered to the appellant by the Arbitrator. Counsel
further submits that the learned Trial Court has overlooked the legal
position as the mandate of Section 31(5) of the Arbitration and
Conciliation Act is that the signed copy of the award shall be
delivered to each party and not merely dispatched to each party.
Counsel further submits that the award in question was passed by the
Arbitrator on 3.11.2006 but the same was sent by the Arbitrator
through post on 29.5.2007 and that too from post office, which was
situated far off from the place of the Arbitrator. Counsel further
submits that even the postal receipt does not carry the complete
address of the appellant and, therefore, there was no proper delivery
of the Award by the Arbitrator to the appellant. In support of his
arguments counsel for the appellant placed reliance on the judgment
of the Apex Court in State of Maharastha and Ors. vs. Ark Builders Pvt.
Ltd. (2011) 4 SCC 616.
3. I have heard learned counsel for the appellant at considerable
length and given my thoughtful consideration to the pleas raised.
4. On perusal of para 5 of the impugned order it is evident that the
learned Arbitrator had entered the reference on 22nd August, 2006 and
notice was sent by the Arbitrator to the appellants to file their
statement of objections/defence by 18.9.2006. The service on the
appellants was effected through courier and as per the courier receipt
placed on the record, the notice was received by one Ms. Saroj Bala on
behalf of the appellants. Since the proof of delivery was still awaited,
therefore, the learned Arbitrator on 18.9.2006 directed fresh notice on
the appellants while adjourning the matter for 19.10.2006. Yet again,
service on the appellants was effected through courier and as per the
courier receipt placed on record, the service on the appellants was
effected through Ms. Saroj Bala. Undoubtedly, Ms. Saroj Bala is one of
the appellants i.e. Appellant No. 2 herein and with the service of the
notice on the appellant No. 2 this Court does not find any substance in
the arguments advanced by the counsel for the appellants that the
appellants were not duly served by the Arbitrator.
5. The other argument advanced by the counsel for the appellant
is that there was no proper delivery of the award to the appellants as
the postal receipts placed on record do not carry the complete address
of the appellants. The learned Trial Court has rightly observed that it is
a general practice adopted by the postal authorities to write only the
name of the person to whom the letter is addressed and the name of
the city on the receipts and not the complete address of the addressee
on the postal receipts. Under Section 27 of the General Clauses Act,
1897 the presumption of service arises unless the contrary is proved.
In the case at hand, the service on addressee is shown by filing the
postal receipts and the said postal receipts bears the date as
29.5.2007 and with the placing on record the said postal receipts the
delivery of the award as envisaged under Section 31(5) of the Indian
Arbitration and Conciliation Act stands fully satisfied.
6. Manifestly the appellants failed to file any objections within the
prescribed period of limitation as envisaged under Section 34(3) of the
said Act and, therefore, the learned Trial Court has rightly dismissed
the objections filed by the appellants under Section 34 of the
Arbitration and Conciliation Act being barred by limitation. During the
course of the arguments, learned counsel representing the appellants
was posed a question whether the appellants had paid the amount of
the loan advanced to them to find out whether the appellants have any
good case on merits or not, but the counsel fairly submitted that the
loan amount was still outstanding. It is thus quite apparent that the
appellants were using dilatory tactics merely to avoid payment of the
outstanding loan amount. The contentions raised by counsel for the
appellants in the present appeal have already been dealt with by the
learned Trial Court supported with sound reasoning and this Court does
not find any illegality or perversity in the reasoning of the learned Trial
Court. The appellants have taken shelter under false pleas and the
appeal deserves to be dismissed with costs.
7. Therefore, the appeal is hereby dismissed with costs of
Rs. 10,000/-.
November 28, 2011 KAILASH GAMBHIR,J
