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TMI Blog2011 (2) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 5. 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 retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 functions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same appears to be legal, valid and sufficient. 12. The other judgment delivered by three-Judges Bench of the Hon'ble Supreme Court, in case of (C.C. Alavi Haji v. Palapetty Muhammed and Anr.) 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. 13. In the aforesaid judgment the Hon'ble Supreme Court have raised doubt about ..... X X X X Extracts X X X X X X X X Extracts X X X X
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