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M/s. OM Sakthi Travels Private Limited Represented by its Director R. Saravanan v/s M/s. Subhameenakshi Auto Finance Rep. by its partner D.S. Senthivel, Madurai & Another

    O.P.No. 493 of 2020

    Decided On, 07 January 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE M. SUNDAR

    For the Petitioner: Anand Johnson, S. Namasivayam, Advocates. For the Respondents: ----



Judgment Text

(Prayer: Original Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the award dated 25.04.2013 passed by the second respondent pertaining to the dispute between the petitioner and the first respondent in Arbitration Case No.R/S.S.A.F/10 of 2012.)

Captioned 'Original Petition' [hereinafter 'OP' for the sake of brevity] is an application under Section 34 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity, assailing an 'arbitral award dated 25.04.2013 bearing reference Arbitration Case No.R/S.S.A.F/10 of 2012' [hereinafter 'impugned award' for the sake of convenience, brevity and clarity] made by an 'Arbitral Tribunal' [hereinafter 'AT' for the sake of convenience and brevity] constituted by a sole Arbitrator.

2. Proceedings made in captioned OP in the listing on 27.11.2020 is of significance and the same reads as follows:

'Mr.B.Anand Johnson, learned counsel representing the counsel on record for sole petitioner is before me in this web-hearing on a video-conferencing platform.

2. Captioned 'Original Petition' ('OP' for the sake of brevity) has been filed assailing an 'arbitral award dated 25.04.2013 bearing reference Arbitration Case No.R/S.S.A.F/10 of 2012' ('impugned award' for the sake of brevity) made by an 'Arbitral Tribunal' ('AT' for the sake for the brevity) constituted by a sole Arbitrator.

3. Learned counsel representing the counsel on record for petitioner submits that challenge to the impugned award is on one point and that one point is, the petitioner in captioned OP, which was the sole respondent before AT, had not received any notice from the AT prior to the receipt of the impugned award. It is the specific and categoric case of learned counsel for petitioner that the impugned award was received by the petitioner in captioned OP on 26.04.2013. This submission essentially turns on Section 34(2)(a)(iii) of 'The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity, is learned counsel's emphatic say.

4. Registry to requisition the records of AT qua impugned award from the Sole Arbitrator Mr.Y.KRajagopal having address for service at No.222/3, Rohini Flats, Anna Nagar West, Chennai – 600 040. Registry to request sole Arbitrator to send records within a fortnight from today i.e., on or before 11.12.2020. Registry is permitted to requisition through electronic modes of communication, if co-ordinates are available. Learned counsel for petitioner is also permitted to communicate these proceedings to learned sole Arbitrator, both by conventional modes as well as electronic modes of communication, for the limited purpose of enabling the Arbitrator to send the entire arbitral records pertaining to impugned award in a sealed envelope to the Office of the Registrar General of this Court on or before 11.12.2020. Registry to put up the sealed envelope before me as part of case file in the next listing.

List on 14.12.2020.'

(underlining now made in this order for the purpose of supplying emphasis, highlighting and for ease of reference).

3. Aforementioned proceedings are self explanatory, pursuant to the above mentioned proceedings records of the AT qua impugned award were requisitioned and AT has sent entire records in a sealed envelope under cover of a letter dated 07.12.2020.

4. Proceedings made in subsequent listings on 14.12.2020 and 04.01.2021 read as follows:

Proceedings dated 14.12.2020:

'Read this in conjunction with and in continuation of earlier proceedings dated 27.11.2020.

2. Today, Mr.Anand Johnson, learned counsel representing the counsel on record for sole petitioner is before me in this web hearing on a video conferencing platform.

3. Pursuant to proceedings made in earlier listing on 27.11.2020, Registry has put up a note that records of arbitral tribunal have since been received and Registry has placed the same before me in a sealed envelope as part of case file.

4. List immediately after Christmas Vacation'.

Proceedings dated 04.01.2021:

'Read this in conjunction with and in continuation of earlier proceedings dated 14.12.2020.

2. Today, Mr.Anand Johnson, learned counsel representing the counsel on record for sole petitioner is before me in this web hearing on a video conferencing platform.

3. Re-notified.

4. List on 07.01.2021.'

5. Today, Mr.Anand Johnson, learned counsel representing the counsel on record for sole petitioner is before me in this web hearing on a video conferencing platform i.e., Virtual Court.

6. The aforementioned sealed envelope containing records of AT qua impugned award was opened and records were perused.

7. Letter from learned sole Arbitrator i.e., AT under cover of which records of AT were sent is as follows:

“IMAGE”

8. To be noted, the above is the letter under cover of which sealed envelope was sent.

9. There is another letter dated 07.12.2020 (inside the envelope) under cover of which, records of AT qua impugned award were sent and the same is as follows:

“IMAGE”

10. This Court carefully perused the records of AT. It is clear that AT has sent a communication dated 26.03.2012 fixing the first sitting at 2.00 p.m. on 28.04.2012 in the venue mentioned therein. This 26.03.2012 communication is as follows:

“IMAGE”

11. Be that as it may, what is of immense significance is aforementioned 26.03.2012 communication has been mailed by registered post with acknowledgment due to the same address as in the short and long cause titles of captioned OP and sole petitioner before me has duly received the same, postal receipt and postal acknowledgment card as found in the records of AT are as follows:

“IMAGE”

12. The above itself draws the curtains and puts an end to petitioner's campaign against the impugned award as the lone point on which the challenge is predicated falls flat on its face. However, this Court deems it appropriate to record that it comes to light from the records of AT that petitioner in captioned OP has gone before AT and has even been represented by a counsel in some of the sittings. Handwritten proceedings of AT containing signatures of all concerned together with typed copy are as follows:

“IMAGE”

13. Be that as it may, another matter of significance is, AT has also been addressed by counsel for petitioner vide letter dated 12.04.2012 which forms part of the records, besides which there are two more communications dated 05.11.2012 and 29.11.2012 from AT both of which have been mailed by registered post with acknowledgment due and both of which have been duly received by petitioner in captioned OP (at the very address given in the short and long cause titles of captioned OP). The respective letters and postal acknowledgment cards are as follows:

“IMAGE”

14. Therefore, the following aspects emerge and become very clear from the perusal of records of AT:

(a) Petitioner in captioned OP has received atleast three communications from the AT (communications dated 26.03.2012, 05.11.2012 and 29.11.2012) prior to the receipt of impugned award on 26.04.2013. To be noted postal acknowledgment cards for all three communications are available in the records of AT.

(b) Petitioner in captioned OP has gone before AT, participated in the proceedings and also been represented by a counsel in some sittings. To be noted minutes signed by all concerned are available as mentioned supra.

(c) Learned counsel for petitioner has even sent a communication to AT.

(d) All the aforesaid notices have been sent to the same address of petitioner as shown in short and long cause titles of captioned OP and postal acknowledgment cards show that the same has been duly received by petitioner inter-alia by affixing a round seal.

15. In the light of the above, the lone contention on which captioned OP was predicated which is captured in paragraph No.3 of proceedings dated 27.11.2020 (extracted and reproduced supra) falls flat on the face of it and is floored.

16. In the light of the lone contention on which captioned OP was predicated falling flat on its face, captioned OP cannot but be dismissed. Before parting with this matter, this Court deems it appropriate to mention that the learned sole Arbitrator has maintained records meticulously and the fact that learned Arbitrator has been able to send 8 years old records in a meticulously compiled manner to this Court, deserves appreciation, on the same note th

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is Court also deems it appropriate to write a caveat. This caveat is protagonists of applications under Section 34 of A and C Act have to be very responsible, and should be careful before taking grounds of this nature. 17. However owing to the fair approach of learned counsel this Court refrains itself from imposing costs in this matter but with a further caveat that in similar matters, this Court may have to necessarily adopt a different approach qua costs in days to come. 18. Registry is directed to retain the records of AT along with the envelope and covering letter from the sole Arbitrator dated 07.12.2020 in a sealed envelope and this is obviously for the purpose of reference in an intra court appeal, if that be so. There shall be a post script to this order also in this regard. 19. In the light of the narrative thus far including discussion and dispositive reasoning set out supra, captioned OP is dismissed. There shall be no order as to costs.
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