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2004 DIGILAW 1036 (PAT)

Rama Nand Choudhary v. Progressive Builders

2004-09-27

R.S.GARG

body2004
Judgment 1. Heard learned counsel for the petitioner. 2. The petitioner has come to this Court under Section 11 of the Arbitration and Conciliation Act, 1996. 3. According to the petitioner a dispute had arisen between the parties in relation to a development agreement and despite petitioners sending a notice upon the other side they have not entered into the reference nor have proposed the name of the Arbitrator, this Court should interfere in the matter and appoint an Arbitrator. 4. It is to be seen from the development agreement that the official address of the Company is M/s Progressive Builders, having its office at Sinha Library Road, Post Office-G.P.O., Police Station-Gandhi Maidan. It is also mentioned in the agreement that the agreement was signed by the partners of the respondent Company by one Mr. Manindra Nath Mishra, son of Shyam Nath Mishra, CA/62, PC. Colony, Kankarbagh, Patna and Smt. Shashi Lata, wife of Dr. R.K. Singh, Professors Bachelor Q. No. 3, Saidpur, R. Nagar, Patna. Beyond these three no fourth address is mentioned either in the agreement or in any other document. When this Court required the learned counsel for the petitioner to show from where the address i.e. 302, Capital Towers, Fraser Road, Patna-1 was obtained by the petitioner to send a notice and serve the same upon Mr. Manindra Nath Mishra and Smt. Shashi Lata, learned counsel submitted that it was shown by the petitioner therefore, he does not know anything. 5. He places his strong reliance upon Section 3 of the Act to contend that a notice is required to be sent at the official address and if the same is shown to have been sent at the official address then it would be deemed to have been served. 6. Section 3 of the Act reads as under: "3. Receipt of written communications. 6. Section 3 of the Act reads as under: "3. Receipt of written communications. (1) Unless otherwise agreed by the parties (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 (b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressees 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. (2) The communication is deemed to have been received on the day it is so delivered. (3) This section does not apply to written communication in respect of proceedings or any judicial authority. 7. Clause (a) says that 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. The petitioner is simply relying upon the postal receipt under which the notice was sent, he is not filing any proof that the notice was served or it was received by the other side at their official address or at the place of. business/habitual residence or mailing address. 8. He also places reliance upon clause (b) to say that if the address is not known then sending the communication at the known address would be valid. In the opinion of this Court clause (b) of sub-section (1) of Section 3 would apply in a case where the places referred to in clause (a) cannot be found after making a reasonable enquiry. Present is not a case where the petitioner says that he does not know about the addresses as mentioned in clause (a) of sub-section (1) of Section 3. Subsection (2) of Section 3 says that the communication would be deemed to have been received on the day it is so delivered. In the opinion of this Court sub-section (2) would not apply unless the evidence of delivery or service of notice is brought before the Court. 9. Subsection (2) of Section 3 says that the communication would be deemed to have been received on the day it is so delivered. In the opinion of this Court sub-section (2) would not apply unless the evidence of delivery or service of notice is brought before the Court. 9. Despite repeated opportunities the petitioner has failed to produce the proof of delivery and service on the other side and he is not ready and willing to show to the Court that from where the address 302, Capital Towers, Fraser Road, Patna-1 was obtained by him, I am unable to record a finding that the notice contained in Annexure-2 was ever served upon or delivered to the other side. The petition is dismissed in absence of a cause of action.