LexKAILASH RANI DANG versus RAKESH BALA ANEJA & ANR.
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• [2008] 17 S.C.R. 455 KAILASH RANI DANG A II. RAKESH BALA AN.EJA & ANR. (Civil Appeal Nos 7257-7258 of 2008) DECEMBER 12, 2008 B I [DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ.] ,)... ARBITRATION AND CONCILIATION ACT, 1996: ss.3, 33 and 34 - Execution of ex-parte award - Objections to - HELD: In view of the statement of the postman c that he tendered the envelope to the addressee at his business place but latter refused to accept it, the presumption uls 3 that the document was delivered is attracted - Objection uls 34 having been filed beyond the permissible maximum time of 90 days was rightly rejected by executing court- Code D of Civil Procedure, 1908 - Execution of award made by ~ arbitrator. > The appellant filed on 7 .4.2000 an application for execution of the ex-parte award dated 25.8.1999 passed by the arbitrator over a dispute with regard to the E earnings from a Cinema Hall which were agreed to be equally divided between the appellant and her cousin, namely 'SC' (the respondent), under a family arrangement dated 21.7 .1998 stated to have 'been entered into between them. The respondent filed an application under Order 21, F t Rule 26 CPC, before the executing court seeking a stay .... of the execution proceedings and denying any knowledge of the passing of the award dated 25.8.1999. He pleaded, inter alia, that his Manager had gone to attend the arbitration proceeding on 25.8.1999 but as G neither the appellant nor the arbitrator reached the venue, he after having waited for an hour returned. He also filed -i. on 28.11.2000 an application u/s 34 of the Arbitration and Conciliation Act, 1996 for setting aside the ex-parte award .... stating that he received copy of the award only on 455 H -- 456 SUPREME COURT REPORTS [2008] 17 S.C.R. A 7.10.2000 'during tt~e course of: execution proceedings. Thereafter, the respondent expired and his legal representatives were brought on record, including his wife as respondent no. 1. The appellant filed a reply to respondent's petition content'.iing that the same was I B barred by limitation. The executing court, relying upon · the testimony of the Postman that the respondent had refused on 31.8.1999 to accept the envelope sent by the arbitrator, held that the respondent was deemed to have been served and as such his petition u/s 34 of the Act was c barred by limitation, and accordingly dismissed the same. Respondent no. 1 filed a revision petition before the High Court which allowed the same and set aside the order of the executing court. T'e review application filed by the appellant having been dismissed by the High o Court, she· filed the appeals. It was co.ntended for the appellant that the deceased- res po n dent had knowledge of the arbitration proceedings and deliberately did not appear before the I arbitrator; that though the respondent denied execution E of the family arrangement dated 21. 7 .1998, he did not deny execution of the partnership deed dated 7 .6.1995 which was the parent document; and that as per the statement of the Postman testifying respondent's refusal to accept the notice on 31.8.1998 and in view of s.3 of the F Act, it was deemed to have been served. On behalf of the respondent, besides reiterating the arguments that were raised before the executing court, it was conte 1nded that in view of the certificate date~ 26.8.2003 issued by the Manager of the Hotel to the effect that on 30.8.1999 the G respondent had checked into the Hotel at 8.10 a.m. and on 31.8.1999 he checked out at 8.35 p.m., the statement of the Postman was a lie and,· •herefore, presumption u/s 3 of the Act stood dispelled!. Lastly, the respondents challenged the very appolntment of the arbitrator H contending that no request was made to the first person KAILASH RANI DANG v. RAKESH BALA ANEJA & ANR. 457 t ---. named in the family arrangement as the sole arbitrator, A 4!' and since on his refusal could only the alternate arbitrator - be approached, the appointment of the latter was not justified. '\ Allowing the'tnain appeal, the Court B' HELD:1.1. A bare perusal of provisions of s.3 "of the I Arbitration and Conciliation Act, 1996 would reveal, if a ,.-... written communication is delivered to the addressee personally at his place of business, it shall be deemed to have (leen received by him on the day it was delivered. c Admittedly, a copy of the award had been sent to the
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