BABU NAZIR AHMAD v. PREMSUKH SHYAMSUKH, SONS — 1987 DIGILAW 1 (MP)

SHARMA, J. ( 1 ) BY this appeal the appellant challenges the order dated 6-8-1981 passed by the Additional District Judge, Neemuch (Distt. Mandsaur) in civil Suit No. 40-B/77, refusing to set aside the award and the consequent judgement and decree passed in terms of the award. ( 2 ) A hire-purchase agreement dt. 10-5-1969 was entered into between respondent 1, m/s Premsukh Shyamsukh and Sons and respondent 2 M. A. Munnabai in respect of a vehicle described in the same agreement. Appellant Babu Nazir Ahmad was a guarantor. The said agreement contained an arbitration clause, which has been incorporated in cl. (3) thereof. One Shri Manohar Sharma was named as a sole arbitrator in that agreement. Disputes having arisen and on a reference being made, the arbitrator gave his award on 25-10-1977. It was stated that before the sole arbitrator, appellant in spite of notice had remained absent. On one of the dates, after the proceedings were over, an unstamped Vakalatnama had been filed purporting to be on behalf of respondent 3 Kamrul Hussain but thereafter no appearance was put in even on his behalf. The sole arbitrator had also given notices in writing to the parties as contemplated by S. 14 (1), Arbitration Act (hereinafter referred to as 'the Act' ). ( 3 ) THE sole arbitrator filed the award on the request of respondent 1 in the Court below on 22-12-1977. The application of the sole arbitrator mentions that the delay has occurred owing to the delay caused in service of the notices under S. 14 (1) of the Act. Thereafter on 24-12-1977, the Court ordered for issuance of the notices to the parties to file their objections with regard to the award. On 27-3-1978 appearance was put on behalf of respondent 1. However, the other two respondents and the appellant had not been served. Fresh notices were, therefore, ordered to be issued. On that date itself the Court had further directed for payment of P. F. and service of notice by registered A. D. for issuing notices to the unserved respondents and the appellant. That, however, seems to have been done after 4-7-1978. On 7-9-78 it was found that the notice issued to the unserved respondents and the appellant had not returned back. That, however, seems to have been done after 4-7-1978. On 7-9-78 it was found that the notice issued to the unserved respondents and the appellant had not returned back. The Court, therefore, gave a further direction to get them served by registered A. D. and the P. F. was to be paid within a week. The case was adjourned to 7-11-1978. ( 4 ) ON 7-11-1978 respondent M. A. Munnabhai was absent. The order-sheet mentions that the notice sent by registered post has been returned back unserved for the reason that he had left that place. On a request being made the Court ordered that the said respondent be served by publication. So far as appellant Babu Nazir Ahmad and respondent 3 Kamrul Hussain are concerned, they were present in person. Time was sought by them to file objections on that date they did not file any objection. The case was adjourned to 15-1-1979. ( 5 ) ON 15-1-1979, the appellant and respondent 3 Kamrul Hussain were present. The remaining respondent Munnabhai was absent. There was a default in payment of P. F. on the part of respondent 1. The presiding officer was on leave on that date. The case was, therefore, adjourned to 16-1-1979. The order-sheet of 16-1-1979 mentions the presence of the appellant and respondent 3 Kamrul Hussain. On that date again the presiding officer was on leave. Thus the case was adjourned to 6-2-1979. The order-sheet dated 6-2-1979 reads as under:-this order sheet, bears the signature of the appellant also. ( 6 ) IN the record there is a Vakalatnama given by appellant Babu Nazir Ahmad in favour of the advocates mentioned therein. This Vakalatnama as the endorsement thereon, indicates, was filed on 6-2-1979. ( 7 ) IN the record of the Court below there is an objection petition filed on 6-12-1978 by Nazir Ahmad. There also is an endorsement of filing of this objection petition, that endorsement bears the seal of the judge with signature. According to that endorsement this objection petition by Nazir Ahmad was filed on 6-12-78. ( 8 ) AS mentioned in the order-sheet dated 6-2-79, which has been reproduced above, objection petition had not been filed on behalf of defendants 2 and 3 i. e. Babu Nazir Ahmad and Kamrul Hussain. On that date not only was Nazir Ahmad present himself but his counsel Shri Bhatnagar also was present. ( 8 ) AS mentioned in the order-sheet dated 6-2-79, which has been reproduced above, objection petition had not been filed on behalf of defendants 2 and 3 i. e. Babu Nazir Ahmad and Kamrul Hussain. On that date not only was Nazir Ahmad present himself but his counsel Shri Bhatnagar also was present. That order-sheet bears the signature of Nazir Ahmad. There is no explanation on record to show as to why, if objection petition had been filed on behalf of the appellant on 6-12-1978 itself, there should have been a mention in the order-sheet dated 6-2-1979 that no objection petition had been filed on behalf of Nazir Ahmad and Kamrul Hussain. We have gone through the subsequent order-sheet also of the Court below, but that position does not stand clarified. However, the order-sheet dated 25-6-1979 indicates that time had been granted to respondent 1 to file a reply to the objections filed by the appellant. Respondent 1 filed that reply on 22-8-79, in which an objection was raised that the objection petition had been filed by Babu Nazir Ahmad after the expiry of the limitation. Respondent 2 M. A. Munnabhai in spite of service by publication did not appear and so the Court proceeded ex parte against him. On behalf of Babu Nazir Ahmad no further reply or rejoinder was filed to the reply that had been filed by respondent 1 raising inter alia the plea of limitation. ( 9 ) THE court below framed issues on 28-8-79. On 3-9-79 the Court fixed the case for arguments on issue 5 which was about the objection filed by the appellant being barred by limitation. The case was adjourned for arguments on issue 5 for some reason or the other on 26-9-1979, 31-10-1979 and 23-11-1979. On 12-12-1979 learned counsel appearing for the appellant requested that all the issues including issue 5 should simultaneously be decided by hearing the arguments. The learned judge, therefore, fixed the case for evidence and directed the parties to pay the P. F. if the witnesses were to be summoned. The case was thus adjourned to 6-2-1980. The order sheet dated 6-2-1980 mentions that on behalf of respondent 1 only the plaintiff was to be examined. It also mentions that the witnesses for the appellant were absent and no steps in that behalf had been taken. The case was thus adjourned to 6-2-1980. The order sheet dated 6-2-1980 mentions that on behalf of respondent 1 only the plaintiff was to be examined. It also mentions that the witnesses for the appellant were absent and no steps in that behalf had been taken. On behalf of the appellant time was also sought as the counsel was out of station. The case was thus adjourned subject to payment of costs of Rs. 50/ -. The case was thus adjourned to 1-4-1980. On that date the witnesses of the parties were absent. The counsel for the parties again made a prayer that arguments be heard on issue 5. The Court, therefore, again adjourned the case to 6-5-80 for arguments on issue 5. The case was adjourned for arguments on issue 5 on 6-5-80, 23-6-80, 14-7-80, 18-8-80, 16-9-80, 23-10-80, 11-11-80, 23-12-80, 20-1-81, 18-2-81, 2-3-81, 12-3-81, 1-4-81, 15-4-81, 23-6-81 and 30-6-1981. The arguments were partly heard on 1-7-1981. The order-sheet dated 2-7-81 mentioned that arguments on issue 5 concluded and the case was adjourned for orders to 17-7-1981. The learned Judge adjourned the case for orders on 17-7-81, 1-8-1981 and 3-8-1981. The order then came to be passed on 6-8-1981. As already stated the arguments appear to have been heard only on issue 5, which relates to limitation but the impugned order from para 12 onwards also refers to other objections of the appellant. From those paras it appears that arguments had presumably been advanced even in respect to those objections, other than issue 5, which have been decided by the Court below. ( 10 ) THE Court below has decided the question of limitation, on which issue 5 had been framed on the assumption that the objections had been filed by the appellant on 6-12-1978. Notwithstanding the aforesaid order-sheet dated 6-2-1979 of the Court below and there being no other material to positively hold one way or the other, we shall also assume that the appellant had filed the objections to the award on 6-12-1978. The Court below has found that these objections which had been filed on 6-12-1978 were beyond the time prescribed by Art. 119 (6), Limitation Act. This period of 30 days as is provided in the said article commences to run from the date of service of the notice of the filing of the award. The Court below has found that these objections which had been filed on 6-12-1978 were beyond the time prescribed by Art. 119 (6), Limitation Act. This period of 30 days as is provided in the said article commences to run from the date of service of the notice of the filing of the award. The Court below in para 9 of this impugned order has found that the notice of the filing of the award that was issued from the Court was served on the appellant sometimes between 4-9-78 to 9-9-1978. ( 11 ) THE notice sent by registered A. D. to the appellant bears the signature of one Abid Hussain. That acknowledgment due is in the record and on a perusal thereof, we find that in view of the postal seal on it, the registered letter must have been delivered sometimes in between those days, as have been mentioned by the Court below. There is yet another acknowledgment due, which appears to have been sent much earlier during the arbitration proceedings by the sole arbitrator and that also bears the signature of one Abid Hussain, who had received that letter. In the objection petition dated 6-12-1978 there is absolutely no mention as to how and when the appellant came to know about the filing of the award and that the objection petition was within the stipulated time. The appellant, as already stated, did not submit any rejoinder or reply to the reply that respondent 1 had filed raising an objection that the objection petition filed by the appellant was beyond limitation. The grievance made in the objection petition, however, is that the appellant has been living in Zalawad since a long time. It was within the knowledge of the plaintiff but the plaintiff in spite of that knowledge, to obtain an ex parte award, did not furnish appellant's Zalawad address and thus obtained the award. This allegation, however, does not solve the appellant's problem or discharge the burden. That question apart, the notice was sent by the arbitrator to the appellant on the same address as had been given in the agreement. There also was a clause (No. 21) in that agreement, which permitted the arbitrator to issue notice to the appellant on that address. There is nothing to show that the appellant had even informed the arbitrator or the parties that his address had been changed. There also was a clause (No. 21) in that agreement, which permitted the arbitrator to issue notice to the appellant on that address. There is nothing to show that the appellant had even informed the arbitrator or the parties that his address had been changed. In these circumstances no fault can be attributed to the plaintiff or the Court for having issued the notice on the address of the appellant as had been given in the agreement. ( 12 ) ORDER 5 R. 19-A, C. P. C. , empowers the Court to issue notice by registered post acknowledgment due addressed to the defendant in addition to the issue of summons for service. The summons was properly addressed and was duly sent by registered acknowledgment due. The address given on that registered letter was the one which the appellant himself had furnished at the time of the agreement. ( 13 ) IT was on 4-7-1978 that the Court had directed to pay the P. F. and supply the envelope for sending of the notice by registered A. D. The case was adjourned to 7-9-1979. The record indicates that on 4-7-78 itself, plaintiff had paid the necessary P. F. and the envelope with A. D. along with the requisite postal stamps. Presumably the A. D. in question may not have reached back to the Court on 7-9-78, which was the next date after 4-7-78 or if that had reached back it may not have been induced by then in the record. It was, therefore, on 7-9-78 that the Court again directed the plaintiff to pay the necessary P. F. , etc. , and the case was adjourned to 7-11-78. The plaintiff had, therefore, again paid the necessary P. F. , etc. , for service on the appellant and Munnabhai on 3-10-78. As it is, the appellant appeared on 7-11-78, which was the next date of hearing. ( 14 ) THE appellant in his objection petition dated 6-12-1978 has not said a word as to who that Abid Hussain is, whose signatures about the receipt of the registered letter are to be found on the acknowledgment due. The impugned order of the Court below indicates that at the time of the hearing, it was urged on behalf of the appellant that the said Abid Hussain was neither a member of his family nor was in any other manner connected or known to him. The impugned order of the Court below indicates that at the time of the hearing, it was urged on behalf of the appellant that the said Abid Hussain was neither a member of his family nor was in any other manner connected or known to him. This is what has been asserted even in the memo of appeal. The appellant did not enter into the witness box nor did adduce any other evidence to show that the said service by registered post, because of the reasons that he gives out, could not be treated to be a due service. The presumption that arises in favour of due service does not at all stand rebutted. In these circumstances it has to be held that the objections dated 6-12-78, which had been filed by the appellant for setting aside the award were much beyond the period of 30 days from the date of notice of filing of the award. That being so, the objections deserve to be dismissed on this ground. ( 15 ) LEARNED counsel for the appellant had faintly argued that the award had not been filed in the Court within the time prescribed by law. Suffice it would to mention that since the award had been filed by the arbitrator, the limitation as may be applicable to a party would not be applicable in the instant case. That objection, therefore, stands rejected. ( 16 ) AS already pointed out, arguments had been heard only on issue 5 and it was, therefore, not proper on the part of the Court below to have dealt with the other objections. We, therefore, feel it unnecessary to go into other questions, which were not even seriously pressed before us. Before parting, we would tike to express our displeasure in the manner in which the case had been dealt with by the Court below. From what we have mentioned above, it is apparent that the case had unnecessarily been prolonged for unduly long time. The case was first adjourned from time to time for arguments on issue 5. Thereafter the Court acceded to the requests of the counsel for the parties that the said issue be also decided along with the other issues. Thus, the case was fixed for evidence of the parties. The case was first adjourned from time to time for arguments on issue 5. Thereafter the Court acceded to the requests of the counsel for the parties that the said issue be also decided along with the other issues. Thus, the case was fixed for evidence of the parties. Then again the proceedings reverted back to arguments only on issue 5 but the order incorporates decision on other questions also apart from issue 5. It further appears that neither the counsel for the parties nor the Court below, while passing the impugned order, noticed the contradiction in the endorsements on the objection petition said to have been filed by the appellant on 6-12-1978 and the order-sheet dated 6-2-1979, which negatives the filing of the objections by the appellant on 6-12-1978. The case appears to have been handled by the Court below in a wholly negligent manner and without keeping a proper control on the proceedings. ( 17 ) SINCE the objections filed by the appellant were beyond the period of limitation, they deserve to be rejected on that ground. Therefore, the impugned order and the consequent decree do not call for any interference. ( 18 ) ACCORDINGLY, this appeal fails and is hereby dismissed. Appellant besides bearing his own costs of this appeal shall also pay those of respondent 1. Counsel's fee according to the schedule. Appeal dismissed. .