Calcutta High Court
New Globe Transport Corporation vs Magma Shrachi Finance Limited on 21 February, 2011
Equivalent citations: AIR 2011 CALCUTTA 72, (2011) 2 CAL HN 287
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
P R E S E N T
Hon'ble Justice Ashoke Kumar Dasadhikari, J.
A.P. NO. 476 OF 2010 NEW GLOBE TRANSPORT CORPORATION VS.
MAGMA SHRACHI FINANCE LIMITED
For the Appellant : Mr. Ritobrata Mitra, Adv.
For the Respondnet : Mr. Mainak Bose, Adv.
Mr. K.K. Pandey, Adv.
Mr. Debangshu Gorai, Adv.
Heard On : 02.02.2011 & 03.02.2011
Judgement on : 21.02.2011
ASHOKE KUMAR DASADHIKARI, J.: The petitioner New Globe Transport Company moved this petition under Section 34 of Arbitration and Conciliation Act 1996, challenging the award dated 5th August, 2008 passed by the learned arbitrator.
Petitioner's case is that they were in transportation business and was in need of finance for purchasing a Tata Truck. They approached the representative of the respondent, Magma Shrachi Finance Limited, a company under Companies Act, 1956. The respondent's representative offered to finance a sum of Rs.11 lakhs to be repaid in 46 installments at the rate of Rs.29,810 except for first amounting to Rs.10,000 commencing from 1st February, 2007 and expiring on 1st December, 2010. The petitioner agreed to the terms and conditions of the respondent company and entered into a hire purchase agreement with them upon signing the documents and papers. The petitioner was also called upon to have said agreement signed by a person known to him who would stand as a guarantor for advancing of the said finance amount and the petitioner did it. Petitioner, thereafter, paid 5 installments on due dates. On 4th July, 2007, the driver of the vehicle being No. WB 23B 1768 loaded with various goods parked the vehicle at a petrol pump situated on NH6 under police station Liluah, District Howrah and had gone to take food at a near by Dhaba. After coming back at about 21.30 hours he did not find the truck. The driver immediately reported the matter to the petitioner who instructed his Manager Rama Shankar Shaw to lodge a complaint immediately. On the same day at 22.25 hours a written complaints as FIR was lodge to the Officer in Charge Liluah Police Station, District Howrah and a case was started being No.106/2007 under Section 379 of the Indian Penal Code. On 4th July, 2007, the petitioner issued a letter to the respondent company informing them that the said vehicle has been stolen on 4th July, 2007, for which complaint has also been lodged with Liluah Police Station. A copy of the FIR was also forwarded to the respondent.
Since the truck was insured under National Insurance Company through the insurance cell of the respondent Company the petitioner after collecting all officer forms and documents to be filled in for making insurance claim, send the same to the respondents as per their instruction and handed over all documents to the representative of the respondent in connection with pursuing the insurance claim. The Insurance Company appointed a surveyor for enquiring and submission of survey report with regard to the loss suffer by the petitioner. A copy of the letter issued by insurance company on 13th July, 2007 was also forwarded to the respondent. On 30th August, 2007 petitioner also informed the respondent that since the vehicle is not traceable and it has been stolen for which necessary complaint has been lodged and the matter has been reported in the insurance company, it will not be possible for the petitioners to go on paying monthly installments. In the meantime the criminal case which was registered by the Learned Chief Judicial Magistrate of Hawrah under Section 379 of the Indian Penal Code ended with the final report filed under Section 173 of Code of Criminal Procedure specifying therein that no fruitful result was achieved for recovery of lost truck with goods. The orders passed by the Learned Chief Judicial Magistrate in theft case from Liluah PS case No.106 of 2007 along with the final report was sent to the respondent and one Santanu Bhattacharya, representative of the respondent received the same. Several correspondence as regards clarification and other formalities were made with the insurance company which according to the petitioner, was duly communicated to the respondent company.
On 9th July, 2010, the petitioner received a letter dated 30th July, 2010, issued by the advocate of the respondent informing that the impugned award has been passed on 5th August, 2008, and a copy whereof were served under cover letter dated 8th August, 2008, written by Sri Pulin Behari Das arbitrator. By the said letter copy of the alleged award was again enclose for the petitioner's reference. It was alleged that the said award has became a decree and since the petitioner have not complied with the directions contain in the award, a sum of Rs.12, 51,573 has became due. The said advocate for the respondent has called upon the petitioner to make payment of the said amount within a period of seven days. Petitioner was shocked and surprised to note the contents of the said letter as to the petitioner's knowledge no award was ever served upon the petitioner nor was the petitioner aware that any proceeding was conducted before publication such alleged award, petitioner thereafter contacted his advocate and ascertained from their records that no such copy of award was received. It was contended by the petitioner that the said award was received by the advocates for the first time on 9th July, 2010, when he received the letter dated 30th June, 2010, along with his enclosures thereto.
On 8th August, 2010, your petitioner again received by post a letter dated 31st July, 2010, issued by the advocates for the respondent enclosing therewith a copy of the Tabular statement along with copy of the supporting affidavit and the order dated 27th July, 2010, passed by Hon'ble Justice Sanjib Banerjee. From the copy of the execution application filed by the respondent, the petitioner found the annexed envelope addressed to the petitioner allegedly forwarding the award which shows that the envelop has returned with endorsement 'Not Claimed'. Since the said copies are Xerox copies and as the petitioner could not understand the same, the petitioner by a letter dated 16th August, 2010 called upon the learned arbitrator to provide for inspection of the said documents and the said letter was served by hand but surprisingly the Arbitrator refused to accept and hence the petitioner was constrained to send the same by speed post with acknowledgment due on 17th August, 2010. It appears from the said award the learned arbitrator allowed the claim of the respondent to the tune of Rs.12,51,573/- along with interest at the rate of 24 per cent per annum.
The petitioners thereafter filed this application challenging the said award. The application was moved on 9th September, 2010, and the following order was passed :-
"The Court: This is a Section 34 application. The award was made and published on 5th August, 2008. Prima facie this application is barred by limitation. However, that question has to be gone into before this application is admitted.
Affidavit in opposition is to be filed by 22nd September, 2010. List this application on 30th September, 2010. Affidavit in reply may be filed in the meantime.
All parties concerned are to act on a signed photocopy of this order upon the usual undertakings."
As per the order passed on 9th September, 2010, affidavits were exchanged and matter was heard. Mr. Ritobrata Mitra learned advocate for the petitioner submitted that his client for the first time on 9th July, 2010 came to know about the award only upon receipt of the letter dated 30th June, 2010. He referred Paragraph 6 of the affidavit in opposition affirm by one Moni Mala Dey being constituted attorney of respondent company and he pointed out that the respondent company came to know from the learned arbitrator that the award was duly sent by him to the petitioner by register post with acknowledgment due card on 8th August, 2008. The envelop containing the arbitral award dated 5th August, 2008, passed by Shri Pulin Behari Das learned arbitrator was returned to the learned arbitrator with the postal endorsement 'Not Claimed'. In view of such endorsement by the postman on the said envelop it is not proved that the award was served. Under no circumstances it could be a good service and if at all there be any presumption such presumption is rebuttable. His client has denied that any service of the said award was made upon them. Upon receipt of the said letter dated 30th June, 2010 annexing the copy of the award on 9th July, 2010 the petitioner came to know about the impugned award and by their letter dated 16th August, 2010 requested the learned arbitrator to allow inspection of the original A/D card along with all records sent by the arbitrator at his office at his convenient date and time. However, no reply was received by the petitioners from the learned arbitrator and thereafter they have filed this petition challenging the impugned award and they are well within time and under no circumstances it could be said that this petition was barred by limitation under Sub-section 3 of Section 34 of the Arbitration and Conciliation Act, 1996. Mr. Mitra learned Counsel appearing for the petitioners cited some judgment to justify his contention that the award must be received by the petitioners unless the award is delivered and received by the petitioners the limitation do not start. Mr. Mitra cited the following decisions :-
1. 2005 volume 4 Supreme Court Cases, Page 239.
2. 2006 volume 6 Supreme Court Cases, Page 456.
3. 1956 volume 1 All India Report, Page 670.
4. 2001 volume 2 Maharastra Law Journal, Page 342.
He submitted further that arbitral tribunal to prove that the award was served and the onus is on the arbitral tribunal and his clients denied that the award was ever served before 9th July, 2010, when the petitioners received the letter dated 30th June, 2010, annexing a copy of the award dated 5th August, 2008. And the limitation should run from that date and if it is calculated from 9th July, 2010, then this application is within time.
Learned Counsel for the respondent Mr. Mainak Bose submitted that the award was sent by the learned arbitrator to the petitioner under register post with acknowledgment card on 8th August, 2008 and the said envelop containing the arbitral award dated 5th August, 2008 passed by Shri Pulin Behari Das learned arbitrator was returned to the learned arbitrator with postal endorsement 'Not Claimed' and this shows that the envelop containing the arbitral award was offered by the postal peon at the office of the petitioners at 193 Moharshi Devendra Road, Kolkata-6, Post Office Beadon Street wherefrom the petitioner is carryon his business but the petitioner or their representative was not inclined to receive the said envelop and acknowledge and as such the envelop containing the award have comeback with an endorsement 'Not Claimed' and this is a good service and the limitation starts on and from 8th August, 2008, the date when the envelop was sent by the learned arbitrator to the petitioner by register post with acknowledgment due card. He referred the provision under Sub-section (5) of Section 31 and Clause (a) of Sub-section (1) of Section 3 and Sub-section (2) of Section 3 and contended presumption of service is there, which is in favour of his client, the respondent herein. He said the address of the petitioner is the same as before and it is never changed and the petitioner is running their business from that address at 193 Moharshi Devendra Road, Kolkata-6. It was not the case of the petitioner that they were not running their business from that place or the envelop sent under register post at 193 Moharshi Devendra Road, Kolkata-6 is a wrong address, therefore, the endorsement on the envelop 'Not Claimed' shows good service of the award dated 5th August, 2010 and the presumption of service which is factual one is in their favour which need no further prove either. It was contended that when the petitioner received all subsequent letters and documents at the same address in their office at 193 Moharshi Devendra Road, Kolkata-6, but they refused to receive the said envelop sent by the learned arbitrator on 8th August, 2008 and accordingly 120 days from that date has long expired and this petition is barred by limitation and should be rejected. He also submits that in spite of the fact the petitioner received the letter dated 30th June 2010, on 9th July, 2010, they took more than a month to write a letter to the learned arbitrator asking inspection and the date of the letter written by the learned advocate on behalf of the petitioner's is 16th August, 2010. He also submitted that after the award was passed the learned arbitrator is functious officio and the endorsement on that envelop 'Not Claimed' is sufficient evidence to prove that the award has been served and, in fact, the postal peon tendered the said envelop to the petitioner at the noted address and the petitioner or his representative deliberately and intentionally did not accept the same which amounts good service and it should be presumed as delivered under Section 3 of the Arbitration and Conciliation Act of 1996 and accordingly this petition is barred by limitation and the same should be rejected.
Mr. Bose referred Section 27 of the General Clauses Act and submitted that the legal presumption is also in his favour of the respondent. Under no circumstances by a bare denial the same can be rebutted. Mr. Bose cited the following the decisions :-
1. AIR 1999 Supreme Court 3762,
2. 2007 volume 6 Supreme Court Cases, Page 555,
3. 2009 volume 2 Calcutta High Court Notes, Page 578,
4. 2008 volume 3 Calcutta Law Times, Page 338.
In reply Mr. Mitra submitted that none of the aforementioned judgments is applicable in the instant case of the petitions.
I have gone through the pleadings of the respective parties as well as the materials on record and have considered the submissions made by the learned Counsel for the respective parties. It is on record that the petitioner is running his transport business from 193 Moharshi Devendra Road, P.S. Jorabagan, Kolkata-6. The learned Arbitrator sent the award in an envelop by register post with acknowledgment due card on 8th August, 2008 which returned with postal endorsement 'Not Claimed'. The envelop is sufficiently stamped. The petitioner is receiving letters and correspondences at the said address and it was not case of the petitioner that the office was closed or for any other reason the envelop was not received by their office. Subsequent letters and correspondences all were received from the same address. Accordingly there should not be any doubt to presume that the envelop which was sent at the office of the petitioner, was in fact tendered by the postman at the same address but the same has not been accepted. Mr. Bose cited a judgment deliver by the Division Bench of this Hon'ble High Court in case of Arun Banerjee & Ors. versus Baidya Nath Mullick & Ors. reported in 2008 volume 3 Calcutta Law Times High Court 338 wherein the Hon'ble Division Bench have held that "The notice was sent on behalf of the plaintiffs to the original defendant under registered post with A/D and the same was returned with the postal endorsement 'Not Claimed', which is tantamount to a good service. The notice itself has validly terminated his tenancy with the end of the month of May, 1979 and the same appears to be legal, valid and sufficient."
The other judgment delivered by three-Judges Bench of the Hon'ble Supreme Court, in case of (C.C. Alavi Haji versus Palapetty Muhammed and Another) reported in 2007, Volume 6 Supreme Court Cases, Page- 555 have held as follows :-
"Since in Bhaskaran case the notice issued in terms of Clause (b) had been returned unclaimed and not as refused, the Court posed the question: "Will there be any significant difference between the two so far as the presumption of service is concerned?" It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "the GC Act") could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
In the aforesaid judgment the Hon'ble Supreme Court have raised doubt about the judgment of the Division Bench decision of the Hon'ble Supreme Court cited by Mr. Mitra (D. Vinod Shivappa versus Nanda Belliappa) reported in 2006 Volume 6 SCC page-456) and referred the same to larger Bench, since the Hon'ble Supreme Court, while delivering the judgment, has not taken into consideration the presumption in respect of an official Act as provided under Section 114 of the Evidence Act, 1872.
In Paragraph 8 of (C.C. Alavi Haji versus Palapetty Muhammed and Another) (Supra) it was held that the onus of the sendee to prove that the envelop was not really served and that he was not responsible for such non-service. The petitioner in the present case being the sendee did not prove that the envelop was not served and he was not responsible for such non-service and therefore, there is no rebuttal to the presumption of service.
In the aforesaid circumstances, in my opinion, the word 'Not Claimed' tantamount to good service and accordingly the award was served upon the petitioner on 8th August, 2008 and, therefore, the petition is barred by limitation under Sub-section (3) of Section 34 of the Arbitration and Conciliation Act of 1996 and as such the same is dismissed.
(ASHOKE KUMAR DASADHIKARI, J.) After the judgment was delivered the learned Advocate for the petitioner prays for stay. Such prayer is refused.
All parties to act on a Photostat certified copy of these judgment and order on the usual undertakings.
(ASHOKE KUMAR DASADHIKARI, J.)