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2011 DIGILAW 2974 (MAD)

Ist Petitioner v. Ist Respondent

2011-06-24

VINOD K.SHARMA

body2011
JUDGMENT :- 1. Mrs.Mallika filed application under Section 9 of the Arbitration and Conciliation Act, for directing the respondent to furnish security to secure the amount, claimed by her in arbitration. 2.By way of an order dated 28.01.2010, an interim order was passed directing the respondent to furnish security or in the alternative to show cause as to why moveable and immovable properties of respondent be not attached. A direction was also issued to get an arbitrator appointed. 3.On 26.11.2009, notice was issued to the respondent, returnable by two weeks. Private notice was also permitted. In spite of direction issued by this Court, the applicant did not take any step to serve the respondent through Court and issued only the private notice. 4.The notice issued by the applicant reads as under: "C. RAMESH 10 (Old No.31), Krishna Street Advocate T.Nagar, Chennai-600 017 Ph:2432 3026Cell:98401 43230 REGD. POST WITH ACK.DUE 28TH November 2009 M/s. TCL Holdings Pvt. Ltd Represented by its CEO Mr.Ding Lee MarwahCentre, III Floor, KrishnanlalMarg, Andheri, Mumbai – 400 072. Appln.No.6370 of 2009 Mrs.Mallika, Proprietrix, Mallika Industries vs. Yourselves High Court, Madras Please take notice that in the above application for issuing appropriate directions to you to furnish security to the value of Rs.1 crore, pending conclusion of the Arbitration proceedings, notice has been ordered to be served on you for the hearing on 3.12.2009 by the Hon'ble High Court by its order dated 26.11.2009. Please find enclosed a copy of the Application. You are required to be present on the said date of hearing either in person or through an Advocate failing which the application will be heard and orders passed in your absence." 5.The reading of notice shows that notice cannot be the notice in the eye of law, as it does not comply with the High Court rules with regard to issuance of notice. The applicant was required to send notice after getting it duly stamped from the office, and notice was required to be served along with a copy of the petition. 6.It is now well settled law that the Court notice when not accompanied by a copy of petition, cannot be treated to be a valid notice. The applicant was required to send notice after getting it duly stamped from the office, and notice was required to be served along with a copy of the petition. 6.It is now well settled law that the Court notice when not accompanied by a copy of petition, cannot be treated to be a valid notice. 7.By believing the affidavit of the applicant that the respondent has been served with notice, this Court ordered interim order, directing M/s.TCL Holdings Pvt. Ltd to furnish security for a sum of Rs.1 Crore or in the alternative to show cause as to why the property attached. 8.The interim order, thereafter, was confirmed on 25.02.2010, by recording as under: "This is an application filed seeking the following relief: 1. To furnish security to the value of Rs.One Crore pending conclusion of the arbitration proceedings (extracted as such) 2. Despite the respondent having been served with the order dated 28.01.2010, calling upon it to furnish security for the claim amount and its name is also found printed in the cause list, there is no response and no one represents the respondent. 3. Heard the learned counsel for the applicant. 4. Earlier this Court, vide order dated 28.01.2010, called upon the respondent to furnish security. Despite the said order having been communicated to the respondent, there is no response. Hence, for the very same reasons set out for passing the said order dated 28.01.2010, this application is closed, mandating the respondent to comply with the earlier order referred to supra." 9.Learned counsel appearing on behalf of M/s.TCL Holdings Pvt. Ltd contends that the order passed by this Court, directing it to furnish security as well as the order confirming the interim order cannot be sustained in law, as it was not served with proper notice to the applicant. 10.As already observed above, it is proved on record that no notice in terms of the High Court rules, was served on the respondent. Consequently, both the orders are hereby recalled, by allowing the application to recall of orders. The original A.No.6370 of 2009 is restored, for adjudication on merit. 11.Learned counsel for the respondent prays for time to file counter. Post the matter after 08.07.2011 for argument. The counter, if any, be filed prior to the date fixed with advance copy to the learned counsel for the applicant.