Dismissed

Apex Encon Projects Pvt. Ltd. and Another v. L and T Finance Ltd. and Another

Bombay HC16 Jul 2014ARBP/995/2014

Case brief

AI extract

What is this about?

This order dismissed four arbitration petitions filed in 2014 as barred by limitation under Section 34(3). The Court held that service of the award by registered post to the corporate and registered offices of the petitioner company was legally valid, deeming the petitioners as duly served in April 2013.

What did the court decide?

All four Arbitration Petitions are dismissed as barred by the Law of Limitation.

Apex Encon Projects Pvt. Ltd. and Another Vs L and T Finance Ltd… — Arbitration | Bombay HC (2014)

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ARBP (L.) No.501_502_503_504_2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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ARBITRATION PETITION (L.) NO.501 OF 2014 ALONGWITH ARBITRATION PETITION (L.) NO.502 OF 2014 ALONGWITH ARBITRATION PETITION (L.) NO.503 OF 2014 ALONGWITH ARBITRATION PETITION (L.) NO.504 OF 2014

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Apex Encon Projects Pvt. Ltd. & Anr. … Petitioners Vs. L & T Finance Ltd. & Anr. … Respondents

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Mr. Yogendra J. Singh, Adv. i/b. Auris Legal for the petitioners. Mr. D.D. Madon, Sr. Adv. a/w. Ms. S.I. Joshi, Adv., Mr. Anand Poojari, Adv., a/w. Ms. Nikita Pawar i/b. S.I. Joshi and Co.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 16th July, 2014.

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O R D E R

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The petitioners have challenged the award dated 21^st March, 2013. It is served upon the petitioner company at its registered address in Vishakhapatnam on 1^st April, 2013. It is also been sought to be served upon the petitioners' corporate address in Dwarka. However, the service effected at the corporate address is not shown by registered acknowledgment. The petitions are filed on 10^th March, 2014. Upon the face of the petitions they are seen to be barred by the Law of Limitation governing arbitrations as contained in Section 34(3) of the Arbitration and Conciliation Act, 1996 (the Act). 2. The service is effected by registered post. The postal slips of the service upon the corporate office as also registered office of the respondent are produced. The postal slips show the packets having

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2 ARBP (L.) No.501_502_503_504_2014

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been sent on 30^th March, 2013. Whereas the registered office has acknowledged the packets on 1^st April, 2013, the acknowledgments of the corporate office have not been received.

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Under Section 27 of the General Clauses Act the service would be deemed to be effected if the service is made by properly addressing, prepaying and posting by registered post upon the correct address of the addressee being the corporate office of the petitioner. The address of the corporate office at Dwarka is in the arbitration proceeding being the loan agreement signed by the petitioners themselves. That address is also shown in the cause title of the petitions. Consequently the packets sent by registered post are properly addressed to the corporate office of the petitioners. Each of the registered slips show the packet containing 59 gms. of weight for which Rs.35/- are paid and which would further show that they have been prepaid and posted by registered post.

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The service of the award is accordingly seen to be correctly made as per law. It is deemed to be served upon the corporate office and indeed shown to be served upon i.e. delivered to and received by the registered office of the first petitioners. 5. The first petitioners, being Private Limited Company, must have a registered address on which all the communications would be made under section 51 of The Companies Act, 1956. The service of documents upon a company are required to be made at the registered office of the company Under Certificate of Posting or by registered post or by leaving it at its registered office.

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The petitioners further contended that the petitioners have not been served the award because each of the awards is served upon the registered office which has no concern with the arbitration and

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not upon the corporate office which has taken the loan from the respondent and was accordingly concerned with the arbitral proceedings and the ultimate award. 7. Counsel on behalf of the petitioners drew the court's attention to the judgment in the case of Union of India Vs. Tecco Trichy Engineers & Contractors (2005) 4 Supreme Court Cases 239 in which an application for condonation of delay under Section 34(3) of the Act came to be considered for the government departments. Whilst considering sufficient cause for the 30 days delay which was sought to be explained, the Court observed in paragraph 11 of the judgment that it cannot be oblivious of the fact of impersonal approach of any government departments and organisation like railways. The Court observed that the decision is not taken unless the papers reached the concerned person and the approval of the competent authority or the official above such person is obtained. Hence the Court observed that only if the Chief Engineer of the Government had received the copy of the award he would have been the person concerned who would have taken the decision. It is rightly argued by Mr. Madon that such an analogy cannot be applicable to the limited company which must have a registered office and the registered address upon which service can be effected or any communication can be addressed. In fact it may be stated that if communication is received only by the corporate office it may not be sufficient in case of limited company which would require to be served at the registered office of the company. 8. Further under Section 3 (1) (a) of the Act the written communication would be deemed to be received if it is delivered to the addressee personally or at its place of business, habitual residence

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ARBP (L.) No.501_502_503_504_2014

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or mailing address.

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A limited company is a juristic person. It is to be served at its registered address. The place of business of the limited company is, therefore, the place of its registered address. However Mr. Madon submitted that mailing address may also be given to the arbitrator and if so given he would serve award upon such address. In this case the award is served upon registered office and corporate office addresses there being no other mailing address.

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Counsel on behalf of the petitioner also relied upon the case of State of Maharashtra & Ors. Vs. ARK Builders Pvt. Ltd., (2011) 4 Supreme Court Cases 616 in which the case of Union of India (Supra) has been cited. It has been held in paragraph 15 of the judgment that the award must be received by the party concerned in the manner prescribed by law. The party concerned in this case are the petitioners. The first petitioners are limited company. Hence a limited company which is a juristic person must receive the award. It is prescribed by the aforesaid law that it must be received at its registered address.

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The further reliance is placed upon the judgment in the case of Benarsi Krishna Committee & Ors., Vs. Karmyogi Shelters Pvt. Ltd., (2012) 9 Supreme Court Cases 496 in which the definition of a party under section 2(1) (h) of the Act has been considered. A party under the definition clause is party to the arbitration agreement. The arbitration award is to be served upon the party. In that case it was served upon the advocate of the party. The advocate is an agent of the party. It was held that the party herself / himself / itself was to be served and not the agent of the party to the agreement. In this case the award has not been served upon any agent of the petitioner.

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ARBP (L.) No.501_502_503_504_2014

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It is served upon the petitioners themselves.

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With regard to the service upon petitioner No.2 in each of the above petitions, who are Directors of the company, one Nekkanti Rama Rao and one Padmavati Rama Rao, the packets containing award have been sent by registered post to the place of business of the guarantors which is the corporate address of the petitioners. Aside from Section 27 of the General Clauses Act which shows the deeming provision of the service, a similar deeming provision is under Section 3(1) (a) of the Act. Under section 3(1) (a) any written communication is deemed to be received if it is delivered to the addressee inter-alia at its place of business just as in section 27 of the General Clauses Act the service is deemed to be effected by properly addressing, prepaying and by positing by registered post, a letter containing the document.

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It is argued on behalf of the petitioners that delivery by post is different from receipt by the party and that the service contemplates both delivery as also receipt. The delivery is deemed to be received under Section 3(1) (a) if the aforesaid provision is complied and consequently such service would show the award received by the party in a manner prescribed by law as held in the case of State of Maharashtra (Supra) .

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It is argued that the learned arbitrator served the award upon the address of the respondent which was other than its registered address and if the facility was given to the respondent it should have been also given to the petitioners. Indeed it is seen that the facility has been granted though the arbitrator is not mandatorily required to grant it unless the mailing address is provided. There are only two addresses of the petitioners and the learned arbitrator has

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ARBP (L.) No.501_502_503_504_2014

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served the award upon both the addresses. Having seen that it is deemed to have been received by the corporate office and that it is actually delivered to and received by the registered office, the learned arbitrator cannot be faulted upon the service.

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The service is, therefore, seen to have been effected upon the both the addresses of the first petitioners in April, 2013. The service upon the petitioner No.2, the guarantors in each of the above petitions, is also correctly made. The petitions have not been filed until 10^th March, 2014. The petitions filed about year after such service are barred by the special Law of Limitation under Section 34(3) of the Act.

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Consequently all the above Arbitration Petitions are dismissed.

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( ROSHAN DALVI, J. )

Apex Encon Projects Pvt. Ltd. and Another v. L and T Finance Ltd. and Another

Case brief

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Apex Encon Projects Pvt. Ltd. and Another v. L and T Finance Ltd. and Another

Case brief

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