M/S Hira Carbonics Private Limited, Vs Kunwar Virendra Singh Patel

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2024:CGHC:34276

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 772 of 2024

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M/s Hira Carbonics Private Limited, Through Its Authorised Representative Shri Rahul Agrawal, Registered Office At Om Kutir, Opposite Sagar Nursing House, Civil Lines, Raipur, Chhattisgarh. (NonApplicant No. 1)

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... Petitioner.

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versus

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1 - Kunwar Virendra Singh Patel S/o Late Har Prasad Ji Patel Aged About 73 Years R/o Nehru Nagar Ward, Jhirna Road, Tehsil And District Narsinghpur, Madhya Pradesh. (Applicant)

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2 - Shri Tulsiram Mishra S/o Late Lanki Prasad Mishra R/o 48/5, Nehru Nagar (East), Bhilai, District Durg, Chhattisgarh. (Non-Applicant No. 2)

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... Respondents.

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For Petitioner : Shri Manoj Paranjpe and Shri Abhinav Kandekar, Advocates. For Respondent No.1 : Shri Rakesh Kumar Thakur along with Shri on caveat. Vaibhav Goverdhan, Advocates.

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(Hon’ble Shri Justice Deepak Kumar Tiwari) Order On Board

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04/09/2024

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Petitioner has filed this writ petition under Article 227 of the Constitution of India and prayed for the following reliefs:-

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10.1 To kindly call the complete record of Arbitration proceedings before the Ld. Sole Arbitrator Shri Tulsiram Mishra titled as Hira Carbonics vs. Kunwar Virendra Singh Patel wherein the arbitral award dated 16.04.2020 was passed;

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10.2 To kindly call for complete record of case no. Arb. M.J.C. 12 of 2024 titled as passed by Ld. Commercial Court (District Judge level) Atal Nagar, Nava Raipur, Chhattisgarh Kunwar Virendra Singh Patel Vs. M/s Hira Carbonics Private Limited;

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10.3 To set aside the impugned order dated 26.07.2024(Annexure P-1) in case no. Arb. M.J.C. 12 of 2024 titled as passed by Ld. Commercial Court (District Judge level) Atal Nagar, Nava Raipur, Chhattisgarh Kunwar Virendra Singh Patel Vs. M/s Hira Carbonics Private Limited.

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10.4 To direct Ld. Commercial Court to not to proceed with the proceedings initiated by Respondent No. 1 under section 34 of the Arbitration and Conciliation Act, 1996 in case no. Arb. M.J.C. 12 of 2024 since the proceedings are contrary to the settled position of law.

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10.5 To pass any other order as the Hon'ble Court may deem fit in the interest of justice.

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This matter is listed on default pointed out by the Registry raising objection that the order impugned is appealable under Section 13 of the Commercial Courts Act, 2015(henceforth ‘the Act, 2015’) read with Section 37 of the Arbitration and Conciliation Act, 1996(henceforth ‘the Act, 1996’).

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At the outset, learned counsel for the petitioner would submit that

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Applicant/Respondent No.1 has preferred an Application under Section 34 of the Act, 1996 before the Commercial Court (District Judge Level), Nava Raipur, CG in which present petitioner has raised preliminary objection stating the same to be barred by limitation but the said objection was rejected by the order impugned and the application was allowed for consideration on merits. In view of such, no appealable order was passed in terms of Section 37 of the Act, 1996 or Section 13 of the Act, 2015. He further submits that recently in the matter of Black Diamond Trackparts Pvt. Ltd. And Others v. Black Diamond Motors Pvt. Ltd reported in {2021 SCC OnLine Del 3946}, the Division Bench of Delhi High Court formulated the question with regard to maintainability of a petition under Article 227 of the Constitution of India and finally held that in the facts and circumstances, such petition is to be entertained or not. Relevant para therein read as under:-

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“9. The question of maintainability of a petition under Article 227 of the Constitution of India, with respect to proceedings in a commercial suit before the District Judge (Commercial) arose, because Section 8 of the Commercial Courts Act as under:

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" 8. Bar against revision application or petition

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against an interlocutory order.-

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Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court."

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29 . A petition under Article 227 of the Constitution of India is a discretionary remedy and which discretion is ordinarily not exercised when an alternative remedy is available under the CPC. In, Surya Dev Rai {(2003) 6 SCC 675} as well as in Punjab National Bank v. O.C. Krishnan (2001) 6 SCC 569, Om Prakash Saini v. DCM Limited (2010) 11 SCC 622, Major General Shri Kant Sharma {(2015) 6 SCC 773}, Hameed Kunju v. Nazim (2017) 8 SCC 611 and Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society (2019) 9 SCC 538, it has been held that Article 227 cannot be invoked where the remedy of appeal or revision are available. Thus, de hors Section 8 of the Commercial Courts Act, a petition under Article 227 would not have been entertained against an order of dismissal of an application under Order VII Rule 10 of the CPC, for the reason of the statutory remedy of revision petition being available to the petitioners/defendants. The exercise by the High Court of power/jurisdiction under Article 227 is subject to well known/well settled rules of selfdiscipline and practice. Such jurisdiction/power is not to be exercised in derogation of statutory provisions. In Koyilerian Janaki v. Rent Controller (Munsif), Cannanore (2000) 9 SCC 406, it was held that it was not appropriate for the High Court to have interfered with the order in exercise of powers under Article 227 when the proceedings arose under a special Act which did not provide for second appeal or revision to the High Court; that the purpose behind not providing such remedy was to give finality to the order passed under the Act. Similarly, in Niyas Ahmed Khan v. Mahmood Rahmat Ullah Khan (2008) 7 SCC 539, it was held that the power of superintendence under

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Article 227 cannot be exercised in a manner ignoring or violating the specific provisions of the statute and that the High Court, while purporting to exercise powers under Article 227 to keep trial Courts and Tribunals within the limits of their authority, should not itself cross the limits of its authority. To the same effect is Sunita Rani v. Shri Chand (2009) 10 SCC 628. In A. Venkatasubbiah Naidu v. S. Challappan (2000) 7 SCC 695 it was held that though no hurdle could be put against the exercise of the constitutional powers of the High Court, it was a well recognized principle which gained judicial recognition, that the High Court should direct the party to avail himself of statutory remedies, before resorts to a constitutional remedy. The petition under Article 227 was held to be not maintainable owing to the availability of the remedy of appeal under the CPC. In Surya Dev Rai (supra) also it was held that to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227, the Courts have devised self imposed rules of discipline on their power; supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. It was held that the High Court should have regard to legislative policy formulated on experience and expressed by enactments where legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceeding to judicial review by way of appeal or revision. To

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the same effect is Ajay Bansal v. Anup Mehta (2007) 2 SCC 275.

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30. The reasoning in the aforesaid judgments gave rise to the question, that since the remedy of revision under Section 115 of the CPC though available under the CPC against the order of dismissal of application under Order VII Rule 10 of the CPC, has been taken away under the Commercial Courts Act, whether a petition under Article 227 would lie.

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31. We are of the view that once the Commercial Courts Act has expressly barred the remedy of a revision application under Section 115 of the CPC, with respect to the suits within its ambit, the purpose thereof cannot be permitted to be defeated by opening up the gates of Article 227 of the Constitution of India. The scope and ambit of a petition under Article 227 is much wider than the scope and ambit of a revision application under Section 115 of the CPC; whatever can be done in exercise of powers under Section 115 of the CPC, can also be done in exercise of powers under Article 227 of the Constitution. Allowing petitions under Article 227 to be preferred even against orders against which a revision application under Section 115 CPC would have been maintainable but for the bar of Section 8 of the Commercial Courts Act, would nullify the legislative mandate of the Commercial Courts Act. Recently, in Deep Industries Limited v. Oil and Natural Gas Corporation Limited (2020) 15 SCC 706, in the context of petitions under Article 227 of the Constitution of India with respect to orders in an appeal against an order of the Arbitral Tribunal under Section 17 of the Arbitration & Conciliation Act, 1996, it was held that if petitions under Article 226/227 of the Constitution against

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orders passed in appeals under the Arbitration Act were entertained, the entire arbitral process would be derailed and would not come to fruition for many years. It was observed that though Article 227 is a constitutional provision which remains untouched by an non-obstante Clause 5 of the Arbitration Act but what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing First Appeals under the Arbitration Act, yet the High Court would be extremely circumspect in interfering with the same taking into account the statutory policy, so that interference is restricted to orders which are patently lacking in inherent jurisdiction. Thus, though we are of the view that gates of Article 227 ought not to be opened with respect to orders in commercial suits at the level of the District Judge against which a revision application under CPC was maintainable but which remedy has been taken away by the Commercial Courts Act, but abiding by the judgments aforesaid, hold that it cannot be said to be the law that jurisdiction under Article 227 is completely barred. However the said jurisdiction is to be exercised very sparingly and more sparingly with respect to orders in such suits which under the CPC were revisable and which remedy has been taken away by a subsequent legislation i.e. the Commercial Courts Act, and ensuring that such exercise of jurisdiction by the High Court does not negate the legislative intent and purpose behind the Commercial Courts Act and does not come in the way of expeditious disposal of commercial suits.

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32 . We thus hold the petition under Article 227 of the Constitution of India to be maintainable with respect to the order impugned in CM(M) No. 132/2021. However the

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discretion, whether in the facts and circumstances such petition is to be entertained or not, having under the roster been vested in the Single Judge, we leave it to the Single Judge to exercise such discretion. ”

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In the light of aforesaid principles and the nature of issues involved in the present petition, objection raised by the Registry is overruled.

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Learned counsel for the petitioner would submit that sole arbitrator had passed the award on 16.04.2020 and thereafter had sent the copy of the same to the parties on 12.03.2021 by way of registered post. He further submits that sole arbitrator has duly received the envelope back and the same is found enclosed being part of the arbitral award which shows that there is endorsement by the concerned postman on the envelope that three attempts were made for delivery of the said envelope; on 16.03.2021, the endorsement was to the effect that the “door is locked” and on 17.03.2021, there was no endorsement and on 19.03.2021 there was endorsement that the “recipient has gone out for treatment”. Learned counsel for the petitioner would submit that in the Act, 1996 provision with regard to ‘Receipt of written communication’ under Section 3 has been dealt with and the same is read as under:-

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3 . Receipt of written communications .-(1)Unless otherwise agreed by the parties,-

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(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

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(b)if none of the places referred to in clause (a) can be found after

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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.

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(2)The communication is deemed to have been received on the day it is so delivered.

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(3)This section does not apply to written communications in respect of proceedings of any judicial authority.

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Learned counsel for the petitioner would further submit that Presumption

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has been provided under Section 27 of the General Clauses Act, 1897. For the sake of brevity, which read thus:-

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27. Meaning of service by post.- Where any [Central Act] [Substituted by A.O.1937, for " Act of the Governor General-inCouncil.] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

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Learned counsel for the petitioner would submit that as the registered envelope was sent on the address of Applicant/ Respondent No.1 as per the address of the arbitral award, therefore there is a legal presumption about the valid service and would place reliance in the matter of A.G. Aerovision Electronics Pvt. Ltd. And Others v. Tata Capital

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Financial Services Ltd. reported in { 2018 SCC OnLine Del 10825 }. He would further submit that inspite of due service of the copy of the award in terms of Section 31(5) of the Act, 1996, the Tribunal has not considered the objection in proper perspective and if such an interpretation is allowed, then it may amount to a concession to such a litigant to resort to deceitful means to avoid service and then take plea of non delivery of signed copy of the award to urge that the period of limitation prescribed under Section 34(3) of the Act, 1996 for setting aside the award, has not commenced. In view of such backdrop, impugned order is not sustainable and the same be set aside and prays to allow the petition.

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On the other hand, learned counsel for the respondent would support the impugned order on submission that the same is well merited and does not call for any interference invoking supervisory jurisdiction under Article 227 of the Constitution of India.

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I have heard learned counsel for the parties at length and perused the documents annexed with the petition carefully.

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10.Undoubtedly, Section 114 of the Indian Evidence Act, 1872 provides that the Court may presume existence of certain facts, namely when a letter is shown to have been posted in the common course of business and in the manner provided and it may be presumed to have been served in the usual course unless interrupted by disturbances and under Section 27 of the General Clauses Act, 1897, presumption has been provided by the statute. The cumulative effect of both the above provision is that a letter/notice sent by the registered post to the person concerned at the

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proper address shall deemed to be served upon him in due course unless contrary is proved.

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11.Section 31(5) of the Act, 1996 mandates a duty on the arbitrator that after the arbitral award is made, a signed copy shall be delivered to each party which is the statutory requirement for commencement of the period of limitation. Unless a copy of the said award is delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act, 1996.

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12.Case law relied upon by learned counsel for the petitioner in the matter A.G. Aerovision Electronics (supra) is distinguishable on facts. Further in that matter, various attempts were made for service to the nonclaimant but the same returned with the postal remarks “locked, unclaimed and premises locked ”. When at the time of the execution, an objection was raised about non supply of signed copy of the award, the executing Court directed to serve the same. In such backdrop, the aforesaid order has been passed.

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13.In the case at hand, the postal authorities made a remark that “door is locked” and finally an endorsement was made that the “recipient has gone out for treatment”.

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14.Taking into consideration the said endorsement, the learned Commercial Court has rightly observed that on the basis of that nature of endorsement, it cannot be accepted or even presumed that the nonclaimant had infact refused to accept the copy of the award when the same was ought to be delivered on him and further even the envelope was returned to the sole arbitrator and he has not made any further

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efforts for delivery of copy of award to the non-claimant. When a caveat application was filed by the claimant and the same was received by the non-claimant on 27.12.2023, thereafter within time, application under Section 34(3) of the Act, 1996 was preferred. Therefore, this Court is of the view that learned Commercial Court has assigned proper reasons and discussed all the aspects.

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15.Accordingly, the order impugned is well merited which does not call for any interference invoking supervisory jurisdiction under Article 227 of the Constitution of India.

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16.Resultantly this petition fails and is hereby dismissed.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Avinash

M/S Hira Carbonics Private Limited, v. Kunwar Virendra Singh Patel

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M/S Hira Carbonics Private Limited, v. Kunwar Virendra Singh Patel

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