RAJ KUMAR RAGHAWENDRA PRASAD NARAIN SINGH ALIAS RADHVENDRA PRASAD NARAIN SINGH Vs. ASHIANA LAND DEVELOPMENTS AND PROJECTS PRIVATE LIMITED

JUDGEMENT

(1.) The Letters Patent Appeal has been filed against the judgment and order dated 3-12-2002 passed in C.W.J.C. No. 8850/2001 whereby the writ petition filed for quashing the order dated 1-3-2001 passed in Request case No. 5/98 appointing Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (here-in-after referred to as the Act) by a nominee of Hon'ble Chief Justice, has been dismissed.

(2.) The facts of the case are that the appellants, respondent Nos. 2 and 3 the owners of the land and respondent No. 1 M/s. Ashiana Land Development Project Pvt. Ltd., through its Director, Sri Indrajeet Singh entered into an agreement on 30-12-1987, Annexure-B to the counter-affidavit filed in the writ petition. Clause 26 of the said agreement, Annexure-B, contains arbitration clause which says that in case of any dispute between the owners and the developers relating to this agreement or interpretation of these presents it shall be decided by arbitration in accordance with relevant provisions of the Indian Arbitration Act only at Patna. Respondent No. 1 filed a petition on 27-4-1998, which was registered as Request Case No. 5/98, invoking the power of Hon'ble Chief Justice of this Court under Sub-section (6) of Section 11 of the Act. The owners were opposite parties in the Request case with their addresses as mentioned in the agreement. The nominee of Hon'ble the Chief Justice on 5-11-1999 ordered for issuance of notice on the Opposite parties under ordinary process as well as registered post with A/D. On 7-12-2000 the case was listed with the office note that the notices issued returned unserved and as such notices were ordered to be issued upon the Opposite parties by publication in prominent English daily newspaper published from Patna at the cost of respondent No. 1. Notices were published in the 'Hindustan Times' on 27-12-2000 but the opposite parties did not appear. Request case was heard on 1-3-2001 and Mr. Justice Uday Sinha, a retired judge of this Court was appointed Arbitrator after obtaining his consent by order dated 16-3-2001.

(3.) The aforesaid order appointing arbitrator was challenged in the writ petition on the ground that Act, 1996 had no application as the agreement was executed on 30-12-1987 when the Arbitration Act 1940 was in force, the cause of action for Request case was barred by limitation, the period of three years should be reckoned to have started when respondent No. 1 wrote a letter on 6-4-1992, Annexure-3 to the writ petition, the principle of audi alteram partem has been violated as the appellants were residing at Masoorie and could not know about the newspaper publication at Patna and also notice by publication in newspaper was illegal and improper and also on the ground of doctrine of res judicata as the Misc. Case No. 114/96 filed before the Civil Court for appointment of Arbitrator under Section 8 of Act, 1996 was dismissed, the revision against the said order filed by respondent No. 1 bearing Civil Revision No. 606/97 was subsequently withdrawn by respondent No. 1.