Lakshmanan, J. - (1.) THE facts are fairly clear and simple. But certain important questions arise for consideration in this case. THE applicants had entered into a contract with the respondent under which the respondent had agreed to provide accommodation to the applicant on a ownership basis on the terms and conditions, set out in the agreement. THEre were disputes between the applicants and the respondent. THE disputes were eventually referred to the arbitration. THE sole arbitration (Mr. Justice M. R. A. Ansari (retired) made an award in favour of the respondent Gautham Construction & Fisheries private Ltd. , on 24th May, 1980 ). He made the award and sent a copy of the award and enclosing the same to both the parties and authorised them to file the signed copy of the award on his behalf in this court and inform him so that he shall send the original award and the records of the proceedings to this court. THE respondents herein on receipt of this signed copy of the award from the arbitrator filed O. P. No. 216/90 under Sec. 14 (2) of the Arbitration Act, 1940 praying. x x x x x
(2.) IT is seen from the receiving seal of the original side of this court that the O. P. 216/90 was filed by the respondent herein on 21. 6. 1990. On 30. 7. 1990 I passed the following order, "award filed. Receive the award, Notice returnable by three weeks. Private notice is also permitted" * . On 31. 7. 1990 Mr. J. Krishnamachary counsel for the respondent herein and petitioner in O. P. 216/90 sent a private notice to the petitioner herein by registered post acknowledgment due. The counsel, in the said notice informed the petitioner that the notice was sent as directed by this court returnable on 20. 8. 1990 and requested the petitioner to enter appearance on that date. The counsel for the respondent has also filed an affidavit of service stating that the notice sent by registered post acknowledgment due to the petitioner has been received and in token of such service the acknowledgment received by him has been filed in this court. It is seen from the acknowledgment card produced alongwith the affidavit of service that the notice was served on the petitioner on 4. 8. 90 itself. On 20th Mr. J. Krishnamachari counsel for the respondent mentioned before me that the notice ordered by this court has been served on the petitioner on 4. 8. 90 and hence he may be permitted to move the O. P. 216/90 on 21. 8. 90. On 21. 8. 90, the said counsel appeared before me and invited my attention to the affidavit of service filed. Further the matter was adjourned by me on 21. 8. 90 by one week for appearance of the respondent. When the matter was listed before me on 28. 8. 1990 i again adjourned the matter on 4. 9. 90 and the matter was again listed before me on 5. 9. 90 and after hearing Mr. J. Krishnamachari learned counsel for the petitioner in O. P. 216/90. I passed the following order. On 30. 7. 1990, I passed the following order : "award filed. Receive the award. Notice returnable by three weeks. Private notice also permitted. Accordingly, the counsel for the petitioner sent a notice by registered post acknowledgment due to the first respondent on 31. 7. 1990. It is seen from the acknowledgment now produced by the learned counsel for the petitioner that the notice has already been served on the first respondent on 4. 8. 90 itself. The counsel for the petitioner has also filed an affidavit of service along with the copy of the notice and the acknowledgments. Inspite of service of notice on the first respondent as early as on 4. 8. 1990, the first respondent did not choose to appear before this court. In the result, there will be a decree in terms of the Award passed by the Arbitrator in favour of the petitioner. The Arbitrator has himself awarded interest from the date of final bill i. e. 21. 12. 1987 till the date of payment of the decree of the court whichever is earlier. Considering the award and the sake involved in these proceedings, I order payment of a sum of Rs. 5, 000/- as the petitioners advocate's fee payable by the petitioner directly to the counsel" . To set aside the decree dated 5. 9. 90 passed by me in o. P. 216/90 and dispose of the said O. P. 216/90 on merits application No. 5161/90 has been filed. According to the applicant, the counsel appearing for the first respondent has sent a letter dated 31. 7. 1990 to the applicant at bombay informing them that the award had been filed into court and that they received the above letter from the counsel for the first respondent on 6. 8. 90 (Actually received on 4. 8. 90 as per the acknowledgment card) and that the said fact of receipt of the notice was immediately communicated to the Regional office at Madras to take steps to set aside the award, by filing an application under Sec. 30 of the Act within 30 days from 6. 8. 90. It is the further case of the applicant that the necessary arrangement to file an application under Sec. 30 of the Arbitration Act to set aside the award, and filed the same into court on 28. 8. 90 (Diary No. 16822) now numbered as O. P. 483/90, it is also seen from the office endorsements that the O. P. diary No. 16822 was presented in this court on the original side on 28. 8. 90. The same was returned for compliance of certain directions. It was represented on 18. 10. 90 and admitted by this court on 30. 10. 90. As stated above the notice sent by the counsel for the first respondent under Sec. 14 (2) of the Arbitration Act in regard to the filing of the award was served on 4. 8. 90 itself and that original petition now numbered as O. P. 483/90 was presented in this court under Sec. 30 of the Arbitration act, for setting aside the award on 28. 8. 90 itself well within the prescribed time. It is also alleged by the applicant that the notice in the original petition 216/90 had not been served on them through the court and that the letter dated 31. 7. 90 sent by the counsel for the first respondent did not also state that either this court had ordered private notice or that the said notice was sent as a private notice permitted by the court. The applicants have further stated that they were also not served with the copies of the petition filed by the first respondent in O. P. 216/90 to pass a decree in terms of the award and they were awaiting the same to be served through court along with summons or notice from this court. They further contended that since the applicant had filed an application under Sec. 30 of the Act, to set aside the award within 30 days from the date of the filing of the award, they were under the impression that the O. P. 261/90 filed to pass a decree would have to await the disposal of their application filed for setting aside the award. Further to the shock and surprise of the applicants they received a letter from the counsel for the first respondent dated 22. 9. 90 alongwith the copy of the order passed by this court dated 5. 9. 90 granting ex parts decree in terms of the award in favour of the first respondent, and that the applicants have come to know from the said communication that this court had construed a letter sent by the counsel for the first respondent on 31. 7. 1990 as a notice in the said O. P. No. 216/90, in terms of the order passed by this court on 30. 7. 1990. The applicants were therefore in the bona fide impression that notice in O. P. 216/90, would be served through the court alongwith the petition. It is also stated that the applicants were also not served with the copy of the petition alongwith the letter dated 31. 7. 90 even though in the said letter a references made to an enclosure. In paragraphs 8 and 9 of the affidavit filed in support of the application 5162/90, the applicants have stated thus,x x x x x
(3.) THE applications 5161/90 and 5162/90 were resisted by the first respondent/petitioner in O. P. 216/90 stating that the applicants though received the notice from the counsel on 4. 8. 90 as time No. 15 together with the applicants'name printed, no one appeared on their behalf and on 5. 9. 90 i. e. , after the expiry of 30 clear days the case was posted in the list again as item No. 21 together with name of the applicant in order to give final opportunity to the applicant, but the applicant failed to make arrangements to appear in the court on 5. 9. 90, and on their failure to appear in the court on 5. 9. 90 this court had to decree the petition as prayed for after setting the respondent ex parte. It is also stated in the counter that the respondent's counsel had enclosed a copy of the petition alongwith the registered letter dated 31. 7. 90 as evidenced by the Postal receipt. In answering the allegations made by the applicants in their affidavit regard to the filing of the O. P. to set aside the award under Sec. 30 of the Act, the respondent has only stated in para 6 of the counter thus. Further the fact remains the petitioners have already filed a O. P. under Sec. 30 of the Arbitration Act to set aside the award on 28. 8. 90 and the same was admitted by this court on 30. 10. 90. It is also pertinent to note that when the applications 5161/90 and 5162/90 were posted before me for orders on 16. 10. 90. I passed an order of stay in favour of the applicants as prayed for and directed the respondent herein to file their counter by 22. 10. 1990 and posted both the applications for enquiry on 22. 10. 1990. On 24. 10. 90 a common counter affidavit in these two applications have been filed in O. P. 216/90. I directed the office to number the O. P. diary no. 16822/90 (now numbered as O. P. 483/90) and post the same on 31. 10. 90 alongwith the application No. 5161/90, 5162/90 for enquiry. It is also to be noted that the first respondent has also filed its counter affidavit in O. P. 483/90 which is a petition filed by the applicants under Sec. 30 to set aside the award. The counter affidavit was sworn to on 5. 11. 90 and the signature of the first respondent has also been attested by an advocate and identified by the counsel for the first respondent. According the first respondent, there is no justification for the applicant to approach this court belatedly when they have been actually served with the notice alongwith a copy of the petitions as early as 14. 8. 90 and hence prayed this court to dismiss the application as time barred and not maintainable. The first respondent have raised three contentions with regard to the maintainability of the present applications, the first one is the respondent does not admit the fling of petition under Sec. 30 of the Act by the applicants in the absence of the diary number and the respondent is yet to be served with the said petition and the second one is the applicants have not explained the reasons for absenting before the court on 21. 7. 90 as well as on 5. 9. 90 when the names printed in the cause-list, especially when they had claimed that they filed petition under Sec. 30 of the Act on 28. 8. 1990. Thirdly it is contented by the first respondent that there is no justification for the applicants to approach this court belatedly when they have been actually served with the notice as early as on 4. 8. 90 and hence the applicants have to be dismissed as time barred and not maintainable. I have heard the elaborate arguments of Mr. R. Krishnamoorthy, the learned senior advocate on behalf of M/s. R. Muthukumarasamy and K. Sundareswaran advocates for the applicants and Mr. Vedanthan Srinivasan, the learned Senior Advocate appearing on behalf of Mr. J. Krishnamachari, the learned counsel for the petitioner have reiterated the contentions raised by the applicant in application No. 5161/90 and 5162/90 and argued that this court should recall the judgment and decree passed on 5. 9. 90 in O. P. 216/90 by exercising its inherent jurisdiction. The Learned Counsel further submits that this court has its inherent jurisdiction and power to recall the order of decree passed under Sec. 17 of the Arbitration Act if it was passed irregularly without complying with the requirements of Sec. 17 of the Arbitration Act. The learned counsel next contended that in order to be effective both for the purpose of obtaining judgment in terms of the award and for setting aside the award there must be (a) the filing of the award in the proper court and (b) service of notice by the court. According to the learned counsel though I ordered notice to the applicants on 30. 7. 1990, in regard to the filing of the award through court and also privately, no notice was served on the applicants through court which is a mandatory requirement. Elaborating the said contention Mr. Krishnamoorthy submitted that there must be service of notice or intimation or communication of the filing of the award by court to the parties is essential. In support of his contention Mr. R. Krishnamoorthy has cited the following judgments. 1. 1967 AIR (SC) 1233, 1967 (3) SCR 147, 1967 ALJ 589, 1967 BLJR 669, 1967 MPWR 325, 1967 (2) ILR (All) 423, 1952 AIR (Calcutta) 10, 1968 (1) SCJ 572. 2. 1967 AIR (SC) 1233, 1967 (3) SCR 147, 1967 ALJ 589, 1967 BLJR 669, 1967 MPWR 325, 1967 (2) ILR (All) 423, 1952 AIR (Calcutta) 10, 1968 (1) SCJ 572. 3. 1951 AIR (Madras) 658. 4. 1969 AIR (Calcutta) 381. 5. ILR-II Madras 144. 6. 1988 AIR (SC) 2054, 1988 (2) Arblr 441, 1989 (1) Complj 101, 1988 (3) JT 482, 1988 (2) Scale 739, 1988 (4) SCC 31, 1988 (S2) SCR 231, 1988 (2) UJ 627 1967 AIR (SC) 1233, 1967 (3) SCR 147, 1967 ALJ 589, 1967 BLJR 669, 1967 MPWR 325, 1967 (2) ILR (All) 423, 1952 AIR (Calcutta) 10, 1968 (1) SCJ 572)= (1952 Calcutta 10 = 1952 I Calcutta 196 ). While dealing with the services of summons and notices of the filing of the award under Section 14 of the arbitration Act, the learned Judge of the Calcutta High Court was of the view that the notice of the filing of the award must be made by the court and that the notice received by a party aliunde and not through court is not sufficient. The learned Judge further held that as services must be in the manner provided for in the Act for services of summons we must look at the relevant provisions which are contained in OR. V. of the Civil Procedure Code which has provided for the methods of service of summons shall be made by delivering or tendering a copy of the summons and Rule 16 provides that the serving officer shall require the signature of the person to whom the copy is tendered or delivered. ;