Delhi High Court
Sundaram Finance Limited vs Rakesh Kumar & Anr. on 14 February, 2014
Author: Valmiki J. Mehta
$~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
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
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
