1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Misc. Civil Application No.307 of 2009 (Field Star Dwelling Associates v. Municipal Corporation of City of Amravati) Shri Anand Jaiswal, Advocate for Applicant. Shri J.B. Kasat, Advocate for Non-Applicant. CORAM : R.C. Chavan, J. DATED : 30th April, 2009 Civil Application No.336 of 2009 In Misc. Civil Application No.307 of 2009 1. Heard the learned counsel for the parties. 2. For the reasons mentioned in the application, the application is allowed. 3. The learned counsel for the non-applicant also seeks to place on record an envelope bearing endorsement of refusal dated 12-8-2008 containing the decision of the Commissioner dated 7-8-2008. 4. The envelope is seen and returned. Misc. Civil Application No.307 of 2009 1. This is an application under Section 11 of the Arbitration and Conciliation Act for appointment of an Arbitrator in terms of Clause 28 of the agreement dated 2 1-9-2003 between the parties. 2. I have heard the learned counsel for the applicant as well as the learned counsel for the non-applicant. 3. In terms of Clause 28 of the agreement, in case any dispute arose, the same had to be referred to the Commissioner of the Corporation and the decision of the Commissioner was to be final and binding on the agent, i.e. the present applicant. If the agent was dissatisfied with such decision, the agent was to within the period of thirty days from the receipt of the decision indicate his intention to refer the dispute to arbitration; failing which the said decision was to be conclusive and the same could not be questioned. In this case, the dispute was indeed raised and the Commissioner rendered his decision on 7-8-2008. 4. It is the contention of the non-applicant that this decision was communicated to the applicant immediately and the applicant refused to receive the postal packet sent by registered post and it was returned with endorsement “refused” dated 12-8-2008. Therefore, according to the learned counsel for the non-applicant, this endorsement of refusal implies that the applicant had in fact received the communication and, therefore, the period of thirty days has to be computed from 12-8-2008. The applicant wrote to the Corporation on 23-9-2008 seeking that the dispute may be referred to arbitration, since the applicant did not agree with the order passed on 7-8-2008. The applicant had stated in 3 this letter that the decision dated 7-8-2008 was received by the registered post by it on 13-9-2008. It was also pointed out that it was clear from the envelope that it was dispatched on 11-9-2008. There was no reply to this letter. It seems that the Commissioner had written to the Government of Maharashtra in Urban Development Department on 23-10-2008 seeking names of officers, who would be available for working as Arbitrator. It is significant that this letter dated 23-10-2008 was written to the Government after the applicant’s letter dated 23-9-2008. This can be seen even from para 3 of the affidavit-in-reply filed on behalf of the respondent. Thereafter on 4-3-2009, the applicant filed the present application under Section 11 of the Arbitration and Conciliation Act. On 11-4-2009, the non-applicant wrote to the applicant indicating the names of five persons, who would be available for acting as Arbitrator in terms of Clause 28 of the Agreement dated 1-9-2003. By this letter, the non- applicant called upon the applicant to give consent for appointment of anyone of them as an Arbitrator within fifteen days from the receipt of the letter. 5. It is the contention of the learned counsel for the non-applicant that refusal of postal packet bearing a proper address would imply communication of the contents to the addressee and, therefore, the Commissioner’s decision dated 7-8-2008 must be held to have been communicated to the applicant on 12-8-2008 and, therefore, thirty days’ period for 4 expressing dissatisfaction about the Commissioner’s decision and seeking arbitration was long over before the applicant sent the letter dated 23-9-2008. He submitted that under Clause 28 of the agreement, the decision becomes conclusive if the dissatisfaction is not communicated within thirty days and, therefore, the decision has become conclusive leaving no scope for invocation of arbitration clauses. He submitted that this being the legal position, there is no question of non-applicant waiving the rights, which accrued to him. 6. The learned counsel for the applicant, on the other hand, submitted that had the non-applicant indeed been sure about refusal of communication by the applicant as per endorsement dated 12-8-2008, he would have said so after the communication dated 23-9-2008 by the applicant reached the Commissioner. Rather than communicating to the applicant that this letter dated 23-9-2008 was belated and that the decision of the Commissioner has become final, it can be seen from the affidavit-in-reply that the non- applicant/Corporation had been writing to the Government to indicate the names of the Arbitrators, implying that even the Corporation considered that arbitration was inevitable and the decision of the Commissioner had not become final. The learned counsel for the non-applicant submitted that this may have been because of want of proper legal advice or ignorance of law. Now it is hard to conceive that the Municipal Corporation did not have proper legal advice or the Municipal 5 Commissioner could not construe Clause 28 of the agreement when he rendered a decision on a dispute being raised under the same Clause. Therefore, the only conclusion that can be drawn is even the respondent did not consider that communication as required under Clause 28 of the agreement was complete. Incidentally, receipt which can be imputed to a person, who refused to receive a registered envelope for other purposes, may not be equated to a receipt of a decision referred to in Clause 28 in agreement. For for being dissatisfied with a decision a person would have to read the decision. It would be difficult to impute the knowledge of the contents of such envelope to the person, who is alleged to have refused the packet, particularly in the context of the possibility of several missiles being fired from either side in the light of the dispute which was going on. Had the envelope been superscribed with the words “Commissioner’s decision dated 7-8-2008 under Clause 28” than refusal dated 12-8-2008 would have sealed the applicant’s fate. 7. In any case, failure of the non-applicant to respond immediately upon receipt of letter dated 23-9-2008 from the applicant to indicate that the decision had already been communicated, and was deemed to have been received by the applicant by refusal on 12-8-2008, and thus had become final would imply that even the non-applicant did not accept the position that communication was complete. Otherwise, there was no reason for the non-applicant first to write to the 6 Government on 23-10-2008 for names of appropriate officers for being appointed as Arbitrator and then after application was filed, and even possibly notice was served upon the Corporation, indicating the names of five officers and asking the applicant to choose one of them to act as Arbitrator. In view of this, any objections which the non-applicant could have taken to the application, stand waived by this communication dated 11-4-2009 and, therefore, the application would have to be allowed. 8. The learned counsel for the applicant submits that the applicant desires that Shri Adivarekar, Deputy Secretary, Mantralaya, Mumbai, whose name is at serial No.(iii) in the letter dated 11-4-2009 sent by the non-applicant, may be appointed as Arbitrator. 9. The application is, therefore, allowed. Shri Adivarekar, Deputy Secretary, Mantralaya, Mumbai is appointed as Arbitrator to adjudicate upon the dispute arising out of the agreement dated 1-9-2003. The applicant to pay requisite process fees. JUDGE Lanjewar