NIKHILESH MUKHERJEE Vs. O N G C

JUDGEMENT

(1.) The Court: In this application the petitioners had prayed for an order to enable them to urge the grounds set out in paragraph 34 of the petition, in support of their pending application for setting aside an exparte decree dated December 24. 1996. They had also prayed for an order of stay of operation of the decree, and stay of further proceedings in execution of the decree. In the petition it had been alleged, that in an arbitration proceedings between the parties the petitioners in their statement of claim a sum of Rs. 76,51,108.60, and in its counter statement the respondent had claimed a sum of Rs. 4,12,76,316.67. After six sittings in the reference it would appear, the arbitrator had made and published two separate awards in respect to the claim and the counter claim. The arbitrator had adopted the procedure, it had ben alleged, in compliance with the court's order dated February 24, 1986, that the arbitrator would be appointed in "both the references".

(2.) According to the petitioners, on June 30, 1987 they had received a copy of an award, under a covering letter written to the Registrar, Original Side, both dated June 6, 1987 and from that award the petitioners had come to learn that their claim had been rejected. An application to set aside the award was made on behalf of the petitioners before this court, on July 28, 1987. The respondent had filed its affidavit-in-opposition on November 16, 1987, and according to the petitioners it was then that, for the first time the petitioners came to learn that the arbitrator had made a separate award in respect to the counter-claim of the respondent, and had awarded in favour of the respondent a sum of Rs. 1,59,50,139.39. The petitioners alleged, that no notice under sections 14(1) or 14(2) was served on them in respect to the award made in favour of the respondent, and no notice under section 14(2) was served in respect to the award rejecting their claim. It was alleged in the petition that, "after various proceedings initiated and orders made from time to time by the Hon'ble Court, the petitioners caused a search to be made on 5th August, 1998 and thereafter, of the records of the Hon'ble Court on the advice of their learned counsel." The petitioners alleged, that on September 30, 1996 the advocates for the respondents, by their clerk had purported to serve on the petitioners, notice under section 14(2) in respect to the award in favour of the respondent at premises No. 15/1, Strand Road, Calcutta. In the affidavit of service, filed by that clerk, according to the petitioners the name of the person who had allegedly received the notice had not been disclosed, not was there any explanation as to why the notice had not been served at the address of the petitioners as appeared in the cause-title of their Statement of Claim, and consequently service of notice under section 14(2) was bad. According to the petitioners they had no knowledge of the filing of the award until "only recently upon search of court records," and therefore they may be allowed to rely upon the grounds set out in the petition.

(3.) It would appear from the records, that upon receipt from the arbitrator the award which had been made in favour of the respondent, the Registrar, Calcutta High Court, Original Side, found that the award had not been stamped and under his covering letter dated March 2, 1998 he sent the award to the Collector of Calcutta for adjudication. More than eight years had elapsed. Neither of the parties had taken any step in the matter. By a letter dated May 18, 1996 the advocates for the respondent requested the Collector of Calcutta to intimate them, as to the amount of stamp duty that may be payable on the award to enable them to deposit such amount, and serve the notice under section 14(2) of the Act. The Collector, by its letter dated June 4, 1996 had informed the advocates for the respondent, that the award could not be traced, and requested to be furnished with a copy of the award for the purpose of adjudication. An application in those circumstances was made before the court, on behalf of the respondent, with a prayer for a direction on the Collector to reconstruct and/or process the duplicate award. The court made an order dated August 1, 1996 and directed the Collector to process the duplicate award within seven days, and the advocates of the respondents to serve copies of the application on the Collector and also the advocates on record for the petitioners. The advocates for the petitioners accordingly had been served, it was alleged by the respondent, and that they had received a copy of the petition with all annexure, which included a copy of the duplicate-award and a copy of the covering letter both dated June 6, 1987. By an order dated September 6, 1996 the court allowed the copy award to be filled by the advocates for the respondent before the Registrar, Original Side of this court. The petitioners chose not to appear before the court. By an order dated December 24. 1996 judgment-upon-award and a decree was made by the court, and again the petitioners had chosen not to be represented. The respondents instituted execution proceedings, and by orders dated April 2, 1998 and June 17, 1998 the court appointed Receiver with a direction to sell.