Delhi High Court - Orders
Odeon Builders Pvt. Ltd vs Kone Elevators India Pvt Ltd on 7 March, 2022
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~13(2021)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 109/2022 & IA No.3271/2022
ODEON BUILDERS PVT. LTD ..... Petitioner
Through Mr Karunesh Tandon, Advocate.
Versus
KONE ELEVATORS INDIA PVT LTD ..... Respondent
Through Mr Kunal Kher, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 07.03.2022 IA No.3272/2022 (for exemption) in O.M.P. (COMM) 109/2022
1. Exemption is allowed, subject to all just exceptions.
2. The application is disposed of.
O.M.P. (COMM) 109/2022 & OMP (ENF.) (COMM.) 69/2020
3. The learned counsel appearing for the petitioner has assailed the impugned award on three grounds.
4. First, he submits that no notice of the arbitral proceedings was served on the petitioner and therefore, the petitioner had no opportunity to defend the claims; second, he submits that the Arbitral Tribunal has referred to emails which were not mentioned in the pleadings (Statement of Claims) filed by the respondent before the Arbitral Tribunal; and third, he submits that the claims are barred by limitation as the last payment was made by the petitioner in the year 2014.
5. The order dated 26.07.2019 passed by this Court (in Arb P. 670/2018) Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:10.03.2022 appointing an Arbitrator indicates that the notice for arbitration was issued on 20.08.2018, however, the Arbitral Award indicates that the arbitration had commenced by a notice dated 18.10.2016 (mentioned as CW 1/8). The learned counsel appearing for the petitioner has also relied on the decision of the Supreme Court in M. Chinnasamy v. K.C. Palanisamy and Others:
(2004) 6 SCC 341 in support of his contention that reliance on a communication not mentioned in the pleadings is impermissible.
6. This Court finds no merit in the contention that the petitioner was not provided adequate opportunities to present its defence in the arbitral proceedings. The Arbitral Award clearly indicates that the notices were sent through speed post as well as by email. According to the petitioner, its registered office was closed and the respondent had concealed this fact from the Arbitral Tribunal. The learned counsel submits that it was incumbent upon the Arbitral Tribunal to publish the notices.
7. The learned Arbitrator was appointed by an order dated 26.07.2019 passed by this Court (in Arb P. 670/2018). The said order also records that attempts were made to serve the respondent but the same were unsuccessful. Finally, the respondent was served by publishing notices in the newspapers.
8. The petitioner is a company and there is no dispute that attempts were made to serve the petitioner on the address as available with the Registrar of Companies. Even if it is accepted that the petitioner's office was closed, there was no requirement for the learned Arbitrator to once again publish a notice in the newspapers.
9. Section 3(1) of the A&C Act is relevant and is set out below:-
"3. Receipt of written communications. - (1) Unless otherwise agreed by the parties, -Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:10.03.2022
(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."
10. In the present case, this Court is unable to accept that the petitioner was not served as required. The petitioner is required to keep its registered office open at all business hours. It is apparent from the contentions advanced by the learned counsel for the petitioner that its Directors have failed to comply with the requisite provisions of the Companies Act, 2013. In any view of the matter, the Arbitral Award cannot be set aside on the ground that an opportunity was not provided to the petitioner as it had shut down its Registered Office.
11. The contention that the impugned award is vitiated by patent illegality as it refers to certain emails which were not mentioned in the pleadings, is also unpersuasive. Pleadings are not required to mention any evidence but state the relevant facts.
12. The reliance placed by the petitioner on the decision of the Supreme Court in M. Chinnasamy v. K.C. Palanisamy and Others (supra), is wholly misplaced. In that case, the Court had found that the evidence was in Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:10.03.2022 variance of the pleadings. The learned counsel had also relied on the decision of the Supreme Court in Ram Sarup Gupta (dead) by Lrs v. Bishun Narain Inter College And Others : (1987) 2 SCC 555. The said decision is also of no assistance to the petitioner. In that case, the Court had stated that all material facts must be pleaded. There is no cavil to this proposition. The said decision is not an authority for the proposition that evidence must be included in pleadings.
13. Insofar as the third contention is concerned - whether the claims are barred by limitation; it is seen that the Arbitral Tribunal had relied on a communication dated 18.10.2016. In view of the above, this Court considers it apposite to examine the Arbitral Record in this regard.
14. Let the Arbitral Record be requisitioned. The respondent is also at liberty to file such documents as it considers necessary.
15. List on 18.04.2022.
16. The Registry is also directed to ensure that the Arbitral Record is placed on record before the next date of hearing.
VIBHU BAKHRU, J MARCH 7, 2022 pkv Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:10.03.2022