Y. K. Sabharwal ( 1 ) PLAINTIFF Ludwing Wunsche and Company, a foreign company has filed this suit under the provisions of Foreign Awards (Recognition and Enforcement) Act, 1961 for the enforcement of an award made on September, 1979. Plaintiff is engaged in the business at Hamburg, West Germany and deals, inter-alia, in grain and cattle feed. Defendant No. 1 Raunaq International Limited, New Delhi, as seller and the plaintiff as buyer entered into a contract dated 15th January, 1979. Defendant No. 2 Wllhelmn Meinschausen GMBH is a firm of brokers carrying on business at Hamburg, West Germany, and in its capacity of broker negotiates contracts between buyers in general and sellers in the exporting countries. Defendant No. 2 acted as a broker in the transaction between plaintiff and defendant No. 1. Defendant No. 2 has been added as performa defendant. ( 2 ) PLAINTIFF s case is that defendant No. 1 failed to deliver the goods under the contract and committed a breach thereof and consequently the plaintiff made a demand by a letter dated 1-3-1979 claiming $ 50. 000 as dead freight and sent a debit note to defendant No. 1 for the payment of that amount. The contract was subject to an arbitration agreement which is as follows: "any disputes arising out of or under the contract shall be settled by arbitration in accordance with shall the arbitration rules No. 125 of Grain and Feed Trade Association Ltd. such rules forming part of this contract and of which both the parties hereto shall be deemed to be cognisant". ( 3 ) THE plaintiff by telex dated 20-3-79 called upon defendant No. 1 for settlement of the invoice for a $ 50,000 and further notified that in the event of non settlement, on or before 27-3-79. the plaintiff would crave arbitration. Further notice was given by the plaintiff defendant No. 1 that in case of arbitration it would also claim the difference between the contract price and the market price. On 3-5-79 plaintiff drew the attention of defendant No. 1 to its earlier telex message dated 20-3-79 and informed defendant No. 1 about plaintiff s having appointed its arbitrator and called upon the defendant No. 1 to appoint its arbitrator in terms of the arbitration agreement. On 3-5-79 plaintiff drew the attention of defendant No. 1 to its earlier telex message dated 20-3-79 and informed defendant No. 1 about plaintiff s having appointed its arbitrator and called upon the defendant No. 1 to appoint its arbitrator in terms of the arbitration agreement. It was Further stated that in the event of its failure to nominate an arbitrator the plaintiff would ask the Grain and Feed Trade Association Ltd. (for short gefta ) to nominate and appoint an arbitrator on behalf of the defendant No. 1 the terms of the arbitration agreement. Plaintiff by its letter dated 15th May, 1979 wrote to GEFTA requesting it to appoint an arbitrator on behalf of defendant No. 1 in terms of the arbitration rules. By a letter dated 1-6-79 GEFTA appointed one Mr. P. B. Kersey, to act as arbitrator for defendant No. 1. The hearing of the arbitration was fixed for 11 -7-79 and defendant No. 1 was called upon to put in a written statement by 5. 7-79. The plaintiff filed a claim before the arbitrators on or about 14-6-79 enclosing various documents. ( 4 ) THE arbitrators appointed in terms of the arbitration agreement made their award on 5th September 1979 inter-alia as follows : (A) A valid contract was entered into by the parties in GEFTA Form No. 119; (b) The Defendant No. 1 was in default and shall pay to the plaintiff as buyer within 14 days from the date of the award a sum of $ 38,000 as damages together with interest thereon at the rate of 10% p a. from 23-2-79 to the date of the award. (c) Defendant No. 1 shall pay $ 550 as fees and expenses of arbitration. ( 5 ) THE plaintiff claims that award dated 5-9-79 has been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed. The said award was made by the arbitrators constituted in the manner agreed upon by the parties and had confirmed to the agreed arbitration procedure No appeal has been filed against the said award, the same has become final in the UK, the country in which it was made. The said award was made by the arbitrators constituted in the manner agreed upon by the parties and had confirmed to the agreed arbitration procedure No appeal has been filed against the said award, the same has become final in the UK, the country in which it was made. The said award is in respect of damages for breach of contract, a matter which can lawfully be referred to arbitration under the law of India, and the enforcement thereof is not contrary to public policy of the law of India. ( 6 ) IT is further claimed that the award has not been annuled in United Kingdom, the country in which it was made, due notice of the appointment of arbitrator and of the arbitration proceedings was given to defendant No. 1 who was also given sufficient time to enable it to present its case and the award does not deal with any question or matter beyond the scope of the said arbitration agreement. On aforesaid averments plaintiff seeks enforcement of the award and prays that a decree be made in terms thereof. ( 7 ) DEFENDANT No. 1 had on 23rd June, 1979 filed Suit No. 714/79 against M/s. Ludwing Wunsche and Company and M/s. Wilhelm Meinshausen seeking a declaration that no arbitration agreement exists between the parties and, therefore, the appointment of arbitrators and the reference of disputes to them by M/s. Ludwing Wunsche and Company was withoutjurisdiction. In the said suit on 22nd August, 1979 an order was passed that the award shall not be pronounced. The prayer of M/s. Raunaq International Ltd. that copy of the said order be sent as a cable gram was also allowed. The case of M/s. Raunaq International Ltd. is that the order dated 22nd August, 1979 was duly served on the arbitrators on or about 24-8-79. Its case is that the cable gram was sent by the Registrar of this Court on 23-8-79. Thus, it is claimed that the award made after the said order of stay is illegal, void ab nition and nullity as the arbitrators were neither authorised nor competent to make and publish the award after passing of the stay order on 22nd August, 1979. There is a controversy between the parties about the service of the order of stay. Ultimately Suit No. 714/79 was dismissed by a Division on 11-4-80. There is a controversy between the parties about the service of the order of stay. Ultimately Suit No. 714/79 was dismissed by a Division on 11-4-80. The appeal (RFA (OS) 6/81) was also dismissed by a Division Bench of this Court on 31st October, 1985. ( 8 ) THE enforcement of the award is being objected to by defendant No, 1. Defendant No. 1 has filed objections (I. A. 1852/81) raising various objections against the award. ( 9 ) ON the pleadings of the parties the following issues were framed : (1) Whether the foreign award is not liable to be enforced on the grounds taken in the objection petition ? (2) What is the effect of the order passed on 22-8-79 by this court in Suit No. 714/79 on the arbitration proceedings in question ? (3) Relief. Parties agreed that the suit be tired on affidavits. Defendant No. 1. Objector has filed affidavit of its constituted general attorney Mr. G. S. Aggarwal by way of evidence. The plaintiff has filed the affidavit of Mr, Wolfgang Buro, its director and that of Mr. J. Buckfull, a partner of defendant No. 2 by way of evidence. ( 10 ) I now proceed to determine the issues : Issue No. 1 The objection that there is no arbitration clause in the contract between the parties to refer disputes to arbitration and that the appointment of arbitrators by the plaintiff and the GEFTA was illegal, void and without jurisdiction is no longer available to defendant No. 1, the same having been concluded against it by final decision of Suit No. 714/79. ( 11 ) THE other objection to the enforceability of the award is based on the plea of defendant No. 1 that the principles of natural justice have been violated. The case of the objector, defendant No. 1, is that copy of the claim as well as the documents were never sent to it and hence principles of natural justice have been violated and thus the award is not liable to be enforced. ( 12 ) THE enforcement of foreign awards is governed by the provisions of Foreign Awards (Recognition and Enforcement) Act, 45 of 1961. ( 12 ) THE enforcement of foreign awards is governed by the provisions of Foreign Awards (Recognition and Enforcement) Act, 45 of 1961. Under Section 7 of the Act, a foreign award may not be enforced if the party against whom it is sought to enforce the award proves to the court that party was not given proper notice of the appointment of arbitrator or of the arbitration proceedings or was otherwise unable to present his case. The enforcement of the award can also be refused if the court dealing with the case is satisfied that the enforcement of the award will be contrary to public policy. Section 7 reads as under : "sec. The enforcement of the award can also be refused if the court dealing with the case is satisfied that the enforcement of the award will be contrary to public policy. Section 7 reads as under : "sec. 7 Conditions for enforcement of foreign awards : (1) A foreign award may not be enforced under this Act- (a) if the party against whom it is sought to enforce the award proves to the Courdealing with the case that- (i) the parties to the agreement were under the law applicable to them under some in capacity or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, under the law of the country where the award was made ; or (ii) that party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case ; or (iii) the award deals with questions not referred or contains decisions on matters beyond the space of the agreement: Provided that if the decisions on matters submitted to arbitration can be separated from those not submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced ; or (iv) the composition of arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or failing such agreement, was not in accordance with the law of the country where the arbitration took place ; or (v) the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made ; or (b) if the Court dealing with the case is satisfied that- (i) the subject matter of the difference is not capable of settlement by arbitration under the law of India ; or (ii) the enforcement of the award will be contrary to public policy ; (2) If the court before which a foreign award is sought to be relied upon is satisfied that an application for the setting aside or suspension of the award has been made to a competent authority referred to in sub-clause (v) of clause (a) of sub-section (1), the Court may, if it deems proper, adjourn the decision on the enforcement of the award and may, also on the application of the party claiming enforcement of the award, order the other party to furnish suitable security. " ( 13 ) MR. Ishwar Sahai, learned counsel for the objector has laid great emphasis on sub-clause (vi) of Section 7 (1) (a ). The learned counsel argues that the requirement to give proper notice of the appointment of the arbitrator or of arbitration proceedings implies that the claim and the documents in support thereof have to be supplied to the party against whom claim is made. In absence of the supply of said documents, the submission is, that there will be no proper notice of the arbitration proceedings. The learned counsel submits that proper notice is required to be given both for appointment of arbitrator and of the arbitration proceedings. Counsel has also strongly relied upon the requirement that the award may not be enforced if a party is otherwise unable to present his case. The submission is that in absence of the supply of aforesaid documents there was neither proper service of notice of appointment of arbitrator nor was there any proper notice of the arbitration proceedings and as such defendant No. 1 was unable to present its case before the arbitrator. In short the argument is that how could defendant No. 1 meet the case of the petitioner without knowing its claim. ( 14 ) THE Crains and Feed Trade Association has made Arbitration Rules. There is no dispute between the parties that the Arbitration Rules No. 125 are applicable in the present case. The said rules have been placed on record by the plaintiff. On the question under consideration Rule 4 of the said arbitration rules has a material bearing and it reads as under : "4. Arbitration Procedure 4. 1. Documentary evidence and submissions shall be submitted to the arbitrator (s) as soon as possible after his/their appointment. 4. 2. If one party has submitted any documentary evidence to the arbitrator (s) which has. not been submitted to the other party, then a copy thereof shall be supplied to that party by the arbitrator (s) prior to the hearing. 4. 3. If any party to the arbitration wishes to attend the arbitration hearing he should advise the arbitrator (s) who shall, on receipt of such advice, inform the parties of the expected date, time and place of the arbitration hearing. 4. 3. If any party to the arbitration wishes to attend the arbitration hearing he should advise the arbitrator (s) who shall, on receipt of such advice, inform the parties of the expected date, time and place of the arbitration hearing. Any party or his representative (not being a solicitor or barrister, or other legally qualified advocate, wholly or principally engaged in private practice) shall be entitled to make further submissions oral or in writing in addition to those made under Rule 4:1, Unless the arbitrator (s) otherwise decide (s) no other persons shall be permitted to attend the arbitration hearing, which shall be in private. " ( 15 ) THE aforesaid Rule (4) is in consonance with principles of natural justice that a party must know documentary evidence on which reliance is placed by the other party. A duty has been cast upon the arbitrators to supply a copy of the documentary evidence to the other party, prior to the hearing, if the party submitting documentary evidence to the arbitrators has not submitted the same to the other party. Parties have been given a right to make further submissions orally or in writing in addition to those made under Rule 4:1. ( 16 ) I now proceed to consider whether the claim or other documentary evidence submitted by the plaintiff to the arbitrators were supplied to defendant No. 1 or not. It could be supplied either by the plaintiff or in absence thereof by the arbitrator prior to the hearing. In ground No. 29 a specific plea has been taken by defendant No. 1 that "no copy of the claim as well as document was ever forwarded to defendent No. 1. Hence principles of natural justice was not followed and the arbitrators are guilty of misconduct. " In reply the plaintiff says : "with reference to ground No. 19 the plaintiff states that the allegations made therein are wrong and are denied. The plaintiff was aware of the claim and the arbitration proceeding and was aware of the dates on which arbitration proceedings were to be held and such fact is borne from certain statements made by defendant No. 1 in the suit. It is denied that copy of the claim or documents were not forwarded to defendant No. 1". The plaintiff was aware of the claim and the arbitration proceeding and was aware of the dates on which arbitration proceedings were to be held and such fact is borne from certain statements made by defendant No. 1 in the suit. It is denied that copy of the claim or documents were not forwarded to defendant No. 1". ( 17 ) IT is evident that on account of typographical error it has been stated that plaintiff was awere of the claim, reference obviously is to defendant No. 1 and I will read the reply accordingly. Plaintiff has not specifically pleaded that copy of the claim or documents were forwarded to defendant No. 1. It has simply denied the averment made by defendant No. 1 about the copy of the claim and document having not been forwarded to defendant. It is not the case of the plaintiff that copy of the claim or the documents were supplied by it to a defendant No. 1. Even during the course of the arguments I had asked learned counsel for the plaintiff whether it could produce any letter alongwith which the claim or documents may have been supplied by it to the plaintiff. No such letter was produced. According I will presume that the claim or documents were not supplied by the plaintiff to defendant No. 1. I am also unable to accept the contention of Mr. Popli, learned counsel for the plaintiff that defendant No. 1 was aware of the claim and documentary evidence. The requirement is to supply a copy of the claim and the documents and not that the other party is aware of it. Furthermore, it also does not appear that defendant No. 1 was aware of the exact claim of the plaintiff inasmuch as the plaintiff in its correspondence prior to resorting to arbitration was claimings $ 50,000 as dead freight. In the said correspondence the plaintiff did not claim any damages on account of difference in price, though it did indicate that in the event of its proceeding to arbitration, it will also claim damages being difference between the contract price and the estimated value of the goods on the date of default. In the said correspondence the plaintiff did not claim any damages on account of difference in price, though it did indicate that in the event of its proceeding to arbitration, it will also claim damages being difference between the contract price and the estimated value of the goods on the date of default. Defendant No. 1 at no stage came to know that damages being difference between the contract price and the price on the date of default is being claimed by the plaintiff, in addition to deed freight amount which was being claimed by the plaintiff from defendant No. 1 before resorting to arbitration. ( 18 ) MR. G. S. Aggarwal in his affidavit filed on behalf of defendant No. 1, by way of evidence, has specifically pleaded that no opportunity was given to defendant No. 1 to participate in the arbitration proceedings since even the statement of claim filed by the plaintiff before the arbitrators and its annexures were not made available to defendant No. 1 and as such defendant No. 1 had no opportunity to represent its case before the arbitrators. The denial in the affidavit of Mr. Borrow, director of the plaintiff company is very vague. On this question, Mr. Borrow says that defendant No. 1 was well aware of the claim referred to by the plaintiff to arbitration and was given all particulars to represent its case. By letter dated 1. 3. 79 (Annexure k ) plaintiff had only demanded from defendant No. 1 dead freight amounting to us $ 50,000. In its letter dated 20. 3. 79 (Annexure L) sent by plaintiff to defendant No. 1, the plaintiff did say that in case of arbitration it will claim in addition to deed freight also the difference between the contract and market price but the amount of such difference was neither stated in this letter nor in the subsequent letter dated 3. 5. 79 (Annexure m ). By letter dated 15. 5. 79 (Annexure d ) plaintiff wore to GEFTA informing it that seller, namely, defendant No. 1 had failed to nominate an arbitrator and asking it to appoint an arbitrator on behalf of the seller. By letter dated 1. 6. 79 (Annexure o ) GEFTA informed defendant No. 1 that Mr. R. B. Kursey has been appointed as an arbitrator by the Association to act on behalf of defendant No. 1. By letter dated 1. 6. 79 (Annexure o ) GEFTA informed defendant No. 1 that Mr. R. B. Kursey has been appointed as an arbitrator by the Association to act on behalf of defendant No. 1. It also intimated that the arbitration will take place at the office of the Association on 11. 7. 79 and that the written statements and/or other documentary evidence which defendant No. 1 may wish to put in must reach Mr. Kursey not later than 5th July 1979. The claim of the petitioner is dated l4th June, 1979 (Annexure p ). The said claim shows that reference has been made by plaintiff to various documents which appear to have been filed by the plaintiff alongwith its claim before the arbitrators. Plaintiff made a total claim of $49,625 claimed $ 24,450 on account of price difference and $ 25,175 on account of dead freight. It is not the case of the plaintiff that copy of claim (Annexure p ) or any of its enclosures supplied by it to the objector. In the meantime defendant No. 1 had on 23,6. 79 filed in this court Suit No. 714/79. In reply to letter of GEFTA dated 1,6. 79 (Annexure o ) Defendant No. 1 wrote to GEFTA letter dated 26. 6. 79 (Ex. D-ll ). A copy of Ex. D-11 was forwarded to plaintiff, defendant No. 2 and Mr. Kursey. In this letter defendant No. 1 has made reference to Suit No. 714/79 having been filed by it in this court. Defendant No. 1 in this letter says that the arbitrators, in view of the suit, cannot proceed with the special reference and has requested the GEFTA to bring the said letter to the notice of Mr. A. P. Baton the arbitrator appointed by M/s. Ludwing Wunsche and Company. By letter dated 6. 7. 79 (Ex. D-12) defendant No. 1 was informed by GEFTA that the letter dated 26. 6. 79 had been referred to the arbitrators for their consideration when they meet on 11. 7. 79. By letter dated 12. 7. 79 (Annexure A-2) GEFTA informed defendant No. 1 that the arbitrators have considered their letter dated 26. 6. 79 and are of the opinion that contract of 15. 1. 79 is a valid contract and they are proceeding with the arbitration and have adjourned the arbitration proceedings and will meet for arbitration bearing on 25. 7. 7. 79 (Annexure A-2) GEFTA informed defendant No. 1 that the arbitrators have considered their letter dated 26. 6. 79 and are of the opinion that contract of 15. 1. 79 is a valid contract and they are proceeding with the arbitration and have adjourned the arbitration proceedings and will meet for arbitration bearing on 25. 7. 79. By letter dated 17. 7. 79 (Annexure B) sent by defendant No. 1 to GEFTA it was, inter-alia, stated by defendant No. 1 that it had not even received any copy of the statement of claim which may have been filed by M/s. Ludwig Wunsche and Company and as such are not in a position to file any written statement and/or other documentary evidence. Defendant No. 1 further requested GEFTA to send a copy of the said documents to it. The defendant No. 1 further requested for grant of atleast three weeks time for filing written statement and documentary evidence after receipt by it of copy of statement of claim alongwith documentary evidence which may have been filed by the plaintiff company. The letter dated 17. 7. 79 was replied by GEFTA by its letter dated 24. 7. 79 (Annexure C ). The said letter is absolutely silent about the supply of statement of claim and other documentary evidence which may have been filed by the plaintiff, although, as stated above, the plaintiff had filed its detailed statement of claim dated 14. 6. 79 alongwth documents. Mr. Kursey also wrote to defendant No. 1 letter dated 31. 7. 79 intimating that the Tribunal will be meeting on 24 8. 79 at GEFTA and requested defendant No. 1 to send its evidence in good time before that date otherwise the Tribunal will be at liberty to decide the matter on the basis of such evidence as is available to them. This letter again is silent on the request of defendant No. 1 about supply of statement, of claim and documents filed by the plaintiff before the GEFTA. This letter again is silent on the request of defendant No. 1 about supply of statement, of claim and documents filed by the plaintiff before the GEFTA. ( 19 ) FROM the above discussion four facts clearly emerge, namely, (1) Plaintiff had not supplied its statement of claim and documents to defendant No. 1 ; (2) Defendant No. 1 had specifically requested GEFTA to supply to it statement of claim and documentary evidence as may have been filed by the plaintiff and (3) GEFTA or the arbitrators did not supply to defendant No 1 statement of claim and documentary evidence filed by the plaintiff; (4) Defendant No. 1 was never informed of the amount of damages i. e. difference between the contract price and the estimated value of the goods on the date of default, being claimed by the plaintiff. ( 20 ) THE question is as to the effect of the aforesaid findings which emerge from the evidence on record. Will it or will it not in any manner effect the enforceability of the award. As stated above the award may not be enforced on any of the conditions stipulated in Section 7 of the Act. Some of the conditions are absence of proper notice of arbitration proceedings; inability of a party to present his case or the award being contrary to public policy. Apart from the aforesaid statutory provisions, it is well recognised that a party must know the case of the other party which it has to meet. A party may not chose to contest the proceedings particularly before a foreign Tribunal on account of various reasons including its forming an eopinion that the amount claimed or which may be awarded would be less than the expenses to be incurred in defending it in a Tribunal in a foreign country. The least, it is entitled to know is the amount being claimed by the opposite party and the basis thereof. The contention of Mr. Popli, learned counsel for the plaintiff, that a party must appear before the arbitrator and ask for statement of claim and other documents, on the face of it, is without any substance. The least, it is entitled to know is the amount being claimed by the opposite party and the basis thereof. The contention of Mr. Popli, learned counsel for the plaintiff, that a party must appear before the arbitrator and ask for statement of claim and other documents, on the face of it, is without any substance. The contention is even country to Rule 4 of the Arbitration Rules of GEFTA which casts an obligation on the party sub-mitting documentary evidence to supply it to the other party and on failure of the documentary evidence duty has been cast on the arbitrators to supply all documentary evidence to the opposite party. None of the kind was done. Neither plaintiff supplied, the statement of claim and documentary evidence nor the arbitrators supplied it to defendant No. 1. ( 21 ) THE other contention pressed by counsel for the plaintiff that plea about the non-supply of the statement of claim and documentary evidence were not raised by defendant No. 1 in earlier Suit No. 714/79 is also without any substance. Such a plea was not relevant for decision of the said suit. The claim made in the said suit was of declaration that there is no valid and subsisting arbitration agreement and as such it was no necessary to raise the plea of non-supply of statement of claim and the documenty evidence. Furthermore, said suit was filed on 23-6-79 whereas the defendant No. 1 wrote to GEFTA to supply the documents on 17-7-79. Such a plea not having been taken in the earlier suit, assuming it to be relevant for the purposes of the said suit, does not absolve the plaintiff or arbitrators to comply with the requirement of supply of the documentary evidence more so when such a request is specifically made in the letters sent by defendant No. 1 to GEFTA and the arbitrators. In the reply letters referred to above, it was not stated that the documents had been supplied to defendant No. 1. It is also not stated in the letters sent in reply to defendant No. 1, that statement of claim and documentary evidence will be supplied after defendant No. 1 appears before the arbitrators. Plaintiff even in the present suit has not pleaded or filed any document to show that it had supplied the documentary evidence and statement of claim to defendant No. 1. Plaintiff even in the present suit has not pleaded or filed any document to show that it had supplied the documentary evidence and statement of claim to defendant No. 1. ( 22 ) THE requirement of proper notice of arbitration proceedings implies in it the requirement to supply statement of claim and documentary evidence to the opposite party. In case these are not supplied, in law, there will be no proper notice of arbitration proceedings. In any case the party not supplied with these documents would be justified in contending that it was unable to present its case before arbitration. The non-supply of these documents is fatal to the case of the plaintiff seeking enforcement of the award. Plaintiff cannot have the award enforced which was obtained without supply of statement of claim and documentary evidence to the opposite party, namely, defendant No. 1. ( 23 ) THE next submission put forth on behalf of the plaintiff is that defendant No. 1 was duly intimated of the date of hearing of arbitration proceedings fixed on 11-7-79, 25-7-79 and 24-8-79 and having not participated in the said proceedings, it cannot contend that the principles of natural justice have been violated or that equal opportunity to be heard has not been given to it. Mr. Popli has placed reliance on "towards Uniform Judicial Interpretation" a documentary on the New York Arbitrationconvention of 1958 by Albert Jan Vanden Beng (1981 Edition) for the proposition that "default in arbitration after having been duly notified has invariably been held not to bar enforcement of on award". I have no dispute about this general proposition but in this regard there can be no rigid rule. As stated above, the defendant No. 1 from July 17, 1979 had been requesting for supply of statement of claim and documentary evidence. The author in the aforesaid commentary rightly says that question when a notice can be considered as adequate is usually a question of fact. In serious cases of violation of due process the court accepts the defence of violation of due process. In my opinion, the present case falls in that category. Mr. Berg further says that "the principal of due process implies that the arbitrator must inform a party of the arguments and evidence of the other party and allow the former to express an opinion thereon. In my opinion, the present case falls in that category. Mr. Berg further says that "the principal of due process implies that the arbitrator must inform a party of the arguments and evidence of the other party and allow the former to express an opinion thereon. The non- observance of this principle has actually resulted in another exceptional case in which enforcement of an award refused for violation of due process. " The aforesaid principle is fully applicable to the facts and circumstances of the present case as defendant No. 1 was not supplied the statement of claim and documentary evidence of the other party and, therefore, it could not express on opinion thereon. There has been serious violation of the principles of natural justice. Defendant No. 1 never got a reasonable opportunity to meet the case of plaintiff. Fair hearing is fundamental. There can be no fair hearing without supply of material documents. In view of above, the intimations about dales of hearing are of no consequence. ( 24 ) COUNSEL also contended that no prejudice was caused to defendant No. 1 by non supply of the documents. I do not agree. The result of non supply of statement of claim and documentary evidence to defendant No. 1 was that it did not even know the amount being claimed by the plaintiff and the basis thereof. As observed above, plaintiff made a claim in arbitration for damages of $ 24,450 on account of price difference besides $ 25,175 as dead freight. The defendant was never informed of the total amount of claim on account of difference in prices. Thus, it cannot be said that no prejudice was caused to defendant No. 1. ( 25 ) THERE is also no substance in the contention that defendant No. 1 had no intention to participate in the arbitration proceedings and has only raised an obstructive defence. It cannot be said that defendant No. 1 had no intention no participate merely because of its having filed suit challenging the validity of the arbitration agreement. The defendant was duly pursuing its legal right. It cannot be inferred from filing of Suit No. 714/79 that defendant No. 1 had no intention to participate in the arbitration proceedings. It cannot be said that defendant No. 1 had no intention no participate merely because of its having filed suit challenging the validity of the arbitration agreement. The defendant was duly pursuing its legal right. It cannot be inferred from filing of Suit No. 714/79 that defendant No. 1 had no intention to participate in the arbitration proceedings. In its letter dated 17th July 1979, defendant No. 1 without prejudice to its contentions, asked for supply of statement of claim alongwith documentary evidence which may have been filed by the plaintiff and sought three week s time for filing of written statement and documentary evidence after receipt of the said documents. In view thereof, it cannot be said that defendant No. 1 had no intention to participate in the arbitration proceedings. ( 26 ) LEARNED counsel for the plaintiff rightly commended that this court has no power to set aside the award and under Section 7 the court can only refuse enforcement of the award. Counsel is however, nor right in contending that defendant No. 1 has not made any prayer for refusing for enforcement of the award and has only prayed for its setting aside. The objections have been filed under Section 7 of the Act. It is so stated in the objection petition. The very first ground taken in the objection petition is that the application of the plaintiff seeking enforcement of the award is liable to be dismissed. The objection petition is to be read in a meaningful manner and not in by per technical manner as contended by the plaintiff. There is also no substance in the contention that the plea of non supply of claim and documents having been raised in the grounds in the objection petition and not in factual part of the object petition, the same cannot be looked into. The objection petition has to be read as a whole and not in the manner suggested by counsel for the plaintiff. ( 27 ) LEARNED counsel for the defendant No. 1 has raised upon Suresh Chander Sarkar v. Gosaidas Pal,1 and Shafiqwur Rahman Khan v. 2nd Additional District Judge, Rampur and Ors. 2 holding that if summons are served on defendant without copy of the plaint, then there will be no proper service. ( 27 ) LEARNED counsel for the defendant No. 1 has raised upon Suresh Chander Sarkar v. Gosaidas Pal,1 and Shafiqwur Rahman Khan v. 2nd Additional District Judge, Rampur and Ors. 2 holding that if summons are served on defendant without copy of the plaint, then there will be no proper service. Strictly speaking these dictum laid in these judgment will not apply to the present case but support can be had from the underlying principles, namely, a party must know the case it has to meet. ( 28 ) IN view of above discussion the plaintiff is not entitled to have the award dated 5-9-79 enforced. Consequently, I answer issue No. 1 in favour of defendant No. 1 and against plaintiff. ( 29 ) ISSUE No. 2 In view of my answer to issue No. 1, it is not necessary to express an opinion on the question of the effect of the order passed on 22-8-79 in suit No. 714/79 on the arbitration proceedings. ( 30 ) ISSUE No. 3 In view of my conclusion on issue No. 1, the award cannot be enforced. Accordingly, Suit No. 113a/81 is dismissed and I. A. 1852/81 is allowed. In the facts and circumstances of the case, the parties are left to bear their own costs.