TAPABRATA CHAKRABORTY J. - (1.) In an application under Section 36 of the Arbitration and Conciliation Act , 1996 (hereinafter referred to as the said Act) initiated towards implementation of an ex-parte award dated 13th August, 2014, the learned Single Judge passed an order on 6th December, 2016 observing that "since the award-holder cannot demonstrate service of the arbitral award on any of the award- debtors, EC 1285 of 2015 is dismissed as not maintainable" and granted liberty to the award-holder to apply afresh for execution in accordance with law, but only upon first demonstrating service of the arbitral award on such award-debtor against whom execution is levied. The award holder has come up in appeal against the said order dated 6th December, 2016 stating, inter alia, that in an arbitration proceeding which emanated from a Hire Purchase Finance Agreement dated October 10, 2012 for taking on hire a vehicle being EiCHER entered into by and between the appellant and the respondent no.1, the respondent no.1 agreed to make payment of the total hire purchase price of Rs.14,06,400/- by way of 48 (forty eight) monthly instalments and the respondent nos.2 and 3 duly guaranteed the performance by the respondent no.1. In part discharge of their obligations under the said agreement the respondent no.1 made payment of the 1st to 12th instalment but thereafter failed and neglected to make payment of the subsequent instalments and as such the appellant by a notice dated March 25, 2014 terminated the said agreement. In view of such recalcitrant conduct of the respondents the appellant had no alternative but to make a reference to arbitration. The arbitral award was passed on 13th August, 2014 and the same was served on the respondent nos.1,
(2.) and 3 on August 21, 2014 by registered post with acknowledgement due card but the same did not return. 2. Drawing the attention of this Court to different paragraphs in the execution application, Mr. Sen, learned advocate appearing for the appellant submits that the execution application contains necessary averments to raise the presumption of service of the award. According to Section 114 of the Indian Evidence Act, 1872 read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed.
(3.) He further argues that in the said Act save and except an obligation cast upon the arbitrator to deliver a signed copy of the award, there is no provision requiring the award holder also to effect service of the award. In the absence of such requirement the award holder has to depend upon the service to be effected by the arbitrator and the prescribed period of limitation towards setting aside of the award is to be computed on the basis of such service and after expiry of such period of limitation the award holder would be able to proceed for execution of the award.;