1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR MISC. CIVIL APPLICATION NO. 1175 OF 2009 IN C. A. No. 712 OF 2009 1. M/S. RANA CONSTRUCTION CO. THRU. PARTNER A.S. BAWA AGF, SADIQUABAD COLONY, MANKAPUR, NAGPUR .. PETITIONER/S VERSUS 1. HASNATE TAHERIYAH FIDAYYIAH (TRUST) THRU. MANAGING TRUSTEE OFF. MOUNT ROAD, OPP. SARAF CHAMBERS, NAGPUR .. RESPONDENT/S Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri V. P. Kukday Adv for applicant. Shri R. O. Chhabra Adv for non applicant. CORAM: C. L. PANGARKAR J. Dated: 4 th DECEMBER, 2009. Heard. This application has been filed by respondent for setting aside the order passed exparte by this Court on 09.09.2009, whereby it directed the appointment of Arbitrator under Section 11 2 of the Arbitration & Conciliation Act. 2. M/s Rana Construction filed an application before this Court under Section 11 of the Act for appointment of an Arbitrator. Applicant Rana Construction sought the appointment of the Arbitrator on account of certain disputes which arose between the applicant and the respondent trust. A notice of this application was directed to be issued by this Court by an order dated 04.08.2009. On that date the Court also allowed the notice to be sent by Speed Post. On 01.09.2009 when the matter was listed before this Court office had made an endorsement that respondent has been served in the matter but nobody was present on behalf of the respondent. The matter was listed before the Court on 04.09.2009and was adjourned on two occasions. Thereafter on 09.09.2009 this Court passed an order appointing an Arbitrator in the matter. 3. This application has been filed for setting aside that order which was passed on 09.09.2009 in the absence of respondents. 4. The contention that has been raised by the respondent for setting aside the order is that the managing trustee of the trust 3 was out of India for quite some time. After he came back from abroad he could not contact his lawyer due to the fact that it was the of month of Ramzan and when he later contacted the lawyer Vakalatnama was filed on behalf of the respondent on 11.09.2009 but the Court had already passed an order on 09.09.2009. The contention of the respondent is that although the envelop sent by Shri Narayan Phadnis was received by the trust it was not opened because managing trustee was not available and therefore parties could not put in appearance before the Court within the time. The next ground that has been alleged by the respondent for setting aside the order dated 09.09.2009 is that arbitration agreement itself was not alive.. on the date the application was filed and therefore it is all the more necessary that the non applicant should have been heard in the matter before passing the order. 5. Learned counsel for the applicant M/s Rana Construction Shri Kukday submits that the application should not be allowed for three reasons; first, that there is no provision which enable the party to move an application for setting aside order, second; an appeal has been provided against the said order and third; reasons given in the application are not at all sufficient and on the other hand they show 4 utter negligence on the part of respondent in putting in appearance before the Court. The Court has always to bear in mind the well known principle of audi alterem partem . Every party must be heard before any order is passed against it. Shri Kukday learned counsel for the applicant submits before me that in the instant case although notice was served, no care was taken by the respondent to put in appearance and therefore in no case it could be said that there was no notice to the non applicant at all. He submits that inspite of the fact that notice was issued they have chosen not to appear before the Court. In this regard it would be necessary to look into the orders passed by Court from time to time. The first order is dated 04.08.2009. Court directed issue of notice and permitted notice to be sent by speed post and matter was listed before the Court on 24.08.2009. When the matter came up before the Court on 24.08.2009 it was found that Bailiff had returned the notice unserved and therefore applicant was directed to take appropriate steps within a period of 7 days. It appears that there after the notice was sent under the letter head of Shri N. C. Phadnis Advocate along with copy of application under Section 11 to the respondent. It seems that the office therefore made an endorsement on 01.09.2009 that the notice has been served. It is not a fact in dispute that 5 respondent had received an envelop sent by N. C. Phadnis Advocate. The said original envelop has also been placed on record. Copy of the letter sent by Shri Phadnis Advocate is also placed on record. It goes to show that non applicants were informed that application under Arbitration Act has been filed in the Court. 6. In the context it would be necessary to observe that there was no direction of the Court permitting the lawyer to send a private notice to the party. In fact when the Court directed a notice to be sent by speed post it ought to have been sent through court and not through the Advocate. Private notice sent by a lawyer without there being an order of the Court could not be said to be a notice in the eye of law. Further notice did not disclose the date of appearance before the Court. In the circumstances if the non applicant did not appear within time before the Court no blame can be put on them. They had in fact appeared before the Court on 11.09.2009 and it is not that they chose to appear only after the service of order of appointment of Arbitrator was made. 7. Learned counsel for the applicant though had contended that an appeal should have been filed, there is no reason why an 6 application for setting aside such an order cannot be made. If the principles of audi alterem partem are to be adhered to it would be all the more necessary to set aside such an order and hear the parties afresh. The Court has inherent power to recall any order if it is found that it was passed by the Court without hearing the other side. In the circumstances I find that the order passed by this Court on 09.09.2009 needs to be recalled. 8. The order dated 09.09.2009 is therefore recalled. The parties shall be heard on an application under Section 11 of the Arbitration Act. Operation of the order is stayed at the request of the counsel for the applicant for a period of six weeks. JUDGE svk 7 8 9