P.C.MULLICK, J. - (1.) THIS is an application for an order that a judgment upon award passed by me on 6 -1 -1959 be set aside and that the award be taken off the file.
(2.) SUBJECT matter of dispute between the parties is the claim of the contractor for the construction of certain residential buildings at Garividi. The respondent is the contractor. One D.B. Sen, Architect, is named as the arbitrator in the contract who would adjudicate whatever disputes that might arise between the parties with respect to this contract. The contractor's claim for the construction work having been disputed, sometime in July, 1958 the contractor referred the dispute to the arbitration of the said D.B. Sen. The company contended that D.B. Sen was not competent to arbitrate on the ground that he was financially interested in the matter. Nevertheless the company filed a Written Statement but took no further step in the arbitration proceedings even though due notice was given by the arbitrator of all meetings held by him. On 10 -9 -1958 the company made an application to the Subordinate Judge at Srikakulam tor leave to revoke the authority of the arbitrator under Section 5 of the Indian Arbitration Act. No order tor stay or injunction was, however, obtained in the said proceedings though notice of this proceeding was given both to the contractor and the arbitrator. In due course, the arbitrator made his award in favour of the contractor on 25 -9 -1958 and sent the award to the Registrar of the Calcutta High Court for being filed under Section 14 of the Indian Arbitration Act. The contractor thereupon took steps, paid the necessary fees and having been directed by the Registrar to serve notice, served notice under Section 14(2) of the Act on the company at Calcutta. I should have stated that even though the registered office of the company is at Tumsar in the State of Bombay, the company had a Calcutta office at No. 7C, Lower Circular Road. According to the affidavit of service filed by Prodyot Kumar Banerjee, a clerk in the employ of the Supreme Court Advocate of the contractor, the notice was served on November 28, 1958 by tendering a copy of the notice to one B.P. Mallick alleged to be the Calcutta Manager of the said company. B.P. Mallick was identified as such by one Sri Raghubans Sahai, one of the employees of the company. The said B.P. Mallick, however, after receipt of the notice, refused to sign the acknowledgment on the back of the original. Notice was not thereafter served by affixing. That is how this notice is alleged to have been served. The company did not make any application to set aside the award. In the usual course the matter came up for judgment on award and on the application of the contractor a judgment was passed by me on January 6, 1959. The present notice is taken out by the company to set aside the decree passed by me on January 6, 1959 and for a further order that the award be taken off the file of this Court.
(3.) MR . Santosh Kumar Basu, learned Counsel appearing to oppose the application, contended that notice has been properly served and the present application does not lie. It is clear from the letters of the company, copies of which have been annexed to the petition that the company had a Calcutta office. Having regard to this evidence the company did not make out a clear case that the company had no Calcutta office. The case made in the petition is equivocal. It is stated in the petition that one Lazalo Paul Moulner was one of the Directors and Technical Adviser of the company and he had an office at 7C, Lower Circular Road. This sort of allegation is not enough to enable a court to hold that the company had no Calcutta office, in the face of the evidence to the contrary to be found in the company's own letters. B.P. Mallick admits to be an employee of the said L.P. Moulner, the Director and Technical Adviser, though he denies that he had authority to accept the notice or in fact the notice was tendered to him as alleged by Banerjee. There is no denial that Raghubans Sahai was an employee of the company. On the materials placed before me 1 am not prepared to hold that the notice was not tendered to B.P. Mallick, who I hold is an important official in charge of the Calcutta office of the company. On this finding, can I hold that notice has been served according to law having regard to the fact that the copy of notice was not affixed at a conspicuous part of the premises? Mr. Basu contended that under Section 42 of the Arbitration Act and Rule 14 of the Rules framed under the Act as also under Chapter VIII, Rule 26 of the Rules of this Court, the procedure for service as laid down in Order 5 of the Code of Civil Procedure would not apply to the instant case. The procedure as laid down in Order 5 would have applied had there been no provision as to how the notice is to be served in the Act itself. But Section 42 provides how such notice is to be served. The section provides that notice required by the Act to be served otherwise than through the court may be served either by delivering it to the person on whom it is to be served or by sending it by post in a letter addressed to that person at his usual or last known place of abode or business in India. Notice required to ba served under Section 14(2) is to be served by the party and not through the Court. In Mr. Basu's submission, Section 42 is not limited to service of notice during the pendency of arbitration proceeding but is wide enough to cover cases of service of notice under Section 14(2) of the Act. In the case of Ganeshmull v. Kesoram Cotton Mills, reported in : AIR1952Cal10 , Bachawat, J. held that the service of notice under Section 14(2) of the Act is to be governed by the provisions of Order 5 of the Code of Civil Procedure. Mr. Basu submitted that Section 42 itself provides the manner of service and therefore the provisions of the Code as to service are not applicable. Bachawat, J. did not consider whether Section 42 of the Act provides for the service of notice under Section 14(2) of the Act. There may be something to be said in. favour of this argument advanced by Mr. Basu. But on the facts of this case I am inclined to give an opportunity to the company to contest the award. All notice in the Arbitration proceedings were served in the Registered office. Only for the purpose of serving notice under Section 14(2), the cause title of the proceedings before the arbitrator was amended so as to indicate that the company carries on business at Calcutta. The notice might have been made over to B.P. Mallick, but admittedly he was not apprised of the Arbitration proceedings. He states that he had no authority to accept. I would therefore give the benefit of doubt to the company and hold that properly the notice should have been served in the Registered office of the company as all the previous notices were served in the Arbitration proceedings.;