- (1.) The petitioner New Globe Transport Company moved this petition under Section 34 of Arbitration and Conciliation Act 1996, challenging the award dated 5th August, 2008 passed by the learned arbitrator. Petitioner's case is that they were in transportation business and was in need of finance for purchasing a Tata Truck. They approached the representative of the respondent, Magma Shrachi Finance Limited, a company under Companies Act, 1956. The respondent's representative offered to finance a sum of Rs.11 lakhs to be repaid in 46 installments at the rate of Rs.29,810 except for first amounting to Rs.10,000 commencing from 1st February, 2007 and expiring on 1st December, 2010. The petitioner agreed to the terms and conditions of the respondent company and entered into a hire purchase agreement with them upon signing the documents and papers. The petitioner was also called upon to have said agreement signed by a person known to him who would stand as a guarantor for advancing of the said finance amount and the petitioner did it. Petitioner, thereafter, paid 5 installments on due dates. On 4th July, 2007, the driver of the vehicle being No. WB 23B 1768 loaded with various goods parked the vehicle at a petrol pump situated on NH6 under police station Liluah, District Howrah and had gone to take food at a near by Dhaba. After coming back at about 21.30 hours he did not find the truck. The driver immediately reported the matter to the petitioner who instructed his Manager Rama Shankar Shaw to lodge a complaint immediately. On the same day at 22.25 hours a written complaints as FIR was lodge to the Officer in Charge Liluah Police Station, District Howrah and a case was started being No.106/2007 under Section 379 of the Indian Penal Code. On 4th July, 2007, the petitioner issued a letter to the respondent company informing them that the said vehicle has been stolen on 4th July, 2007, for which complaint has also been lodged with Liluah Police Station. A copy of the FIR was also forwarded to the respondent. Since the truck was insured under National Insurance Company through the insurance cell of the respondent Company the petitioner after collecting all officer forms and documents to be filled in for making insurance claim, send the same to the respondents as per their instruction and handed over all documents to the representative of the respondent in connection with pursuing the insurance claim. The Insurance Company appointed a surveyor for enquiring and submission of survey report with regard to the loss suffer by the petitioner. A copy of the letter issued by insurance company on 13th July, 2007 was also forwarded to the respondent. On 30th August, 2007 petitioner also informed the respondent that since the vehicle is not traceable and it has been stolen for which necessary complaint has been lodged and the matter has been reported in the insurance company, it will not be possible for the petitioners to go on paying monthly installments. In the meantime the criminal case which was registered by the Learned Chief Judicial Magistrate of Hawrah under Section 379 of the Indian Penal Code ended with the final report filed under Section 173 of Code of Criminal Procedure specifying therein that no fruitful result was achieved for recovery of lost truck with goods. The orders passed by the Learned Chief Judicial Magistrate in theft case from Liluah PS case No.106 of 2007 along with the final report was sent to the respondent and one Santanu Bhattacharya, representative of the respondent received the same. Several correspondence as regards clarification and other formalities were made with the insurance company which according to the petitioner, was duly communicated to the respondent company. On 9th July, 2010, the petitioner received a letter dated 30th July, 2010, issued by the advocate of the respondent informing that the impugned award has been passed on 5th August, 2008, and a copy whereof were served under cover letter dated 8th August, 2008, written by Sri Pulin Behari Das arbitrator. By the said letter copy of the alleged award was again enclose for the petitioner's reference. It was alleged that the said award has became a decree and since the petitioner have not complied with the directions contain in the award, a sum of Rs.12, 51,573 has became due. The said advocate for the respondent has called upon the petitioner to make payment of the said amount within a period of seven days. Petitioner was shocked and surprised to note the contents of the said letter as to the petitioner's knowledge no award was ever served upon the petitioner nor was the petitioner aware that any proceeding was conducted before publication such alleged award, petitioner thereafter contacted his advocate and ascertained from their records that no such copy of award was received. It was contended by the petitioner that the said award was received by the advocates for the first time on 9th July, 2010, when he received the letter dated 30th June, 2010, along with his enclosures thereto.
(2.) On 8th August, 2010, your petitioner again received by post a letter dated 31st July, 2010, issued by the advocates for the respondent enclosing therewith a copy of the Tabular statement along with copy of the supporting affidavit and the order dated 27th July, 2010, passed by Hon'ble Justice Sanjib Banerjee. From the copy of the execution application filed by the respondent, the petitioner found the annexed envelope addressed to the petitioner allegedly forwarding the award which shows that the envelop has returned with endorsement 'Not Claimed'. Since the said copies are Xerox copies and as the petitioner could not understand the same, the petitioner by a letter dated 16th August, 2010 called upon the learned arbitrator to provide for inspection of the said documents and the said letter was served by hand but surprisingly the Arbitrator refused to accept and hence the petitioner was constrained to send the same by speed post with acknowledgment due on 17th August, 2010. It appears from the said award the learned arbitrator allowed the claim of the respondent to the tune of Rs.12,51,573/- along with interest at the rate of 24 per cent per annum.
(3.) The petitioners thereafter filed this application challenging the said award. The application was moved on 9th September, 2010, and the following order was passed :- "The Court: This is a Section 34 application. The award was made and published on 5th August, 2008. Prima facie this application is barred by limitation. However, that question has to be gone into before this application is admitted. Affidavit in opposition is to be filed by 22nd September, 2010. List this application on 30th September, 2010. Affidavit in reply may be filed in the meantime. All parties concerned are to act on a signed photocopy of this order upon the usual undertakings.";