IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 155 of 2007 Date of decision July 22, 2008. __________________________________________________________ Devinderjit ….Petitioner Versus Sunita Devi ….Respondent _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 C.R. 155 of 2007 For the Petitioner : Shri Suneet Goel, Advovcate. For the Respondent : Shri Sanjeev Kuthiala , Advocate __________________________________________________________ Dev Darshan Sud, J. The petitioner, herein, has preferred objections under Section 47 of the Code of Civil Procedure in an execution having been taken up by respondent pursuant to an award having been made against the petitioner. Primary objection taken by petitioner is that award dated 26.2.2004 is not enforceable as the award was against law and number of other grounds urged which have not been considered in this revision petition. The primary objection of petitioner herein was that no copy of award as mandated by Section 31 (5) of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as Act), had not been delivered to the petitioner whose right to object to the legality of the award in terms of Section 34 of the Act had been effectively denied to him. The Court framed an issue, as to whether the copy of award was supplied to the Judgment Debtor, herein, as mandated by law. Evidence by way of 1 Whether reports of Local Papers may be allowed to see the judgment? 2 affidavit was submitted by Judgment Debtor Devinderjit who stated that he has not received any signed copy of award. There is no cross-examination on this aspect. The learned District Judge holds that the communication sent to a person by certificate of posting constitutes a valid delivery of the letter. Adverting to the provisions of the Act, I find that learned Judge is in clear error in drawing presumptions that compliance of these provisions is directory and not mandatory. Section 3 of the Act provides:- 3. Receipt of written communications- (1) ……………………………………………………… (a) Any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and (b) If none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it. (2) ………………………………………………………… (3) ………………………………………………………… Section 31 (5) of the Act provides that: “After the arbitral award is made, a signed copy shall be delivered to each party.” On reading these two provisions together, it becomes clear that the statute imposes a mandatory duty on the arbitrator to deliver a signed copy of the award to the parties. Merely to invoke a rebuttable presumption of law and hold that it has been done so, is not the purport or intent of the Statute. The provisions of the Act are clear that award made by the arbitrator becomes executable if no 3 proceedings are taken under Section 34. In other words, a party cannot be left in the lurch by the arbitrator who should ensure that a signed copy of award be delivered to the parties. On reading of Section 3 (b), it becomes clear that award must be sent in the manner which provides a record of the attempt to deliver it. In Mst. L.M.S. Ummu Saleema Vs. B.B. Gujaral and another AIR 1981 SC 1191 dealing with the question of certificates of posting, the Supreme Court held: “6. ……………..One curious feature which we must notice is that the detenue sent to the detaining authority along with his representation a Photostat copy of the Certificate of posting but carefully refrained from sending a copy of the letter of retraction itself. This is indeed extraordinary……………………….. The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on 14.8.1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption. ……………………………………….” To similar effect is the decision of the Court in Gadakh Yashwantrao Kanikarrao Vs. E.V. al;ias Balasaheb Vikhe Patial and others, AIR 1994 S.C. 678, it is held that “60. Gadakh’s version that he sent the letter dated 16th May, 1991 (Exh.Q) under certificate of posting is unbelievable. A certificate of posting is easy to procure and does not inspire confidence…………..” The ratio of these judgments leave no doubt in my mind that the presumption to be drawn in case of communication sent by UPC is rebuttable more especially when read with Section 3 as noticed above. Moreover, there is no evidence on record to suggest that compliance of Section 3 (a) and (b) of the Act has been made. Surely, the arbitrator should have been alive to the situation that sending the award by the registered AD post would not only maintain the record regarding the proof of delivery of signed copy of award but also ensure that 4 parties are not embroiled in interminable disputes. It is by now well settled that provisions of Section 31(5) of the Act are mandatory. In these facts and circumstances of the case, the judgment and order of learned District Judge (Forest) is quashed and set aside. This revision petition is disposed of with following directions:- (i) Let a copy of this order along with a copy of the award be sent to arbitrator by the Registry of this Court; (ii) On receipt of such copy, the arbitrator shall sign the award and dispatch it to the address of the petitioner herein which is Shri Devinderjeet, son of Shri Balwant Rai, resident of 16/6, Krishna Nagar, Cart Road, Shimla-171001. This will be done by him by registered AD post and he shall maintain the copy of receipt or will forward it to this Court to be placed on record of this case; (iii) It will be open to the parties to have recourse to proceedings in accordance with law, once the award has been sent to the petitioner and received by him. This revision petition is accordingly disposed of. There shall be no order as to costs. Needless to say that all execution proceedings shall stand terminated. July 22,2008 (Dev Darshan Sud), (ms) Judge