--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J M.C.C. NO. 261 / 2011 MALIK BROTHERS Vs. CINEMAX INDIA LTD., * * * * * O R D E R ( 19/8/2011) The applicant before this Court, a registered partnership firm, has filed this present application for recalling order dt. 14/3/11 passed in A.C. NO. 17 / 10 by which Hon'ble Shri Justice P.D. Muley (Retd.) has been appointed as an arbitrator under the provisions of the Arbitration & Conciliation Act, 1996. The contention of the petitioner is that an application was submitted u/S. 11 of the Arbitration & Conciliation Act, 1996 for appointment of an arbitrator and a notice was issued by this court. The applicant has further stated that the notice issued by this court was not served to the present applicant and thereafter an application was filed in AC No. 17 / 2010 for substituted service and the notice was published in Dainik Bhaskar, a --- 2 --- newspaper published from Indore. The present applicant has also stated that it is practically impossible for any person to read all newspapers published from Indore and therefore as he has not read the notice he could not appear for hearing of the matter on 14/3/11. It has also been stated that this court after hearing the present non applicant has appointed Hon'ble Shri Justice P.D. Muley (Retd.) as the sole arbitrator. The applicant has further stated that a review petition was preferred by him for reviewing the order dt. 14/3/11 and the same was registered as Review Petition No. 170/11. The applicant has further stated that thereafter on the advice received from his Lawyer, the review petition was withdrawn and now this application has been filed for recalling the order dt. 14/3/11. Learned counsel appearing for the non applicant has vehemently argued before this Court that the applicant does not have any case on merits and is trying to stall the arbitration proceedings by filing this present frivolous application. It has also been stated that a notice was issued to the present applicant for appointment of arbitrator on 7/5/10. However, inspite of there being a --- 3 --- notice which was duly received by the present applicant, no arbitrator was appointed and therefore an application was preferred under the Arbitration & Conciliation Act, 1996 for appointment of an arbitrator. The non applicant has further stated that a notice was issued by the Registry on the same address which is mentioned in the cause title of the present MCC and the endorsement on the notice reveals that the applicant was not available at the aforesaid address. It has also been further stated that as the present applicant was avoiding service of notice, the non applicant, left with no other choice took steps to serve him by substituted service and the notice was published in “Dainik Bhaskar” which is having the largest circulation in the township of Indore. Non applicant has further stated that for the reasons best known to the present applicant he did not appear before this court and thereafter has preferred a review petition for reviewing order dt. 14/3/11. The review petition was withdrawn and now again an attempt is being made by filing this present application u/S. 151 r/w. Or. 9 R. 13 of the Code of Civil Procedure. Learned counsel appearing for the respondent --- 4 --- has argued before this court that once an arbitrator has been appointed after following the due process of law by this court, the question of recalling the order does not arise and the present applicant is certainly at liberty to challenge the award passed by the arbitrator. He has placed reliance upon a judgment delivered in the case of Basant Singh Vs. Roman Catholic Mission reported in (2002) 7 SCC 531. Heard learned counsel for the parties at length and perused the record and the matter is being disposed of at the motion hearing stage itself with the consent of the parties. In the present case, it is an admitted fact that initially a notice was issued by non – applicant to the applicant for appointment of an arbitrator on 8/1/10 and the same was duly served to the applicant. The applicant did nothing nor appointed any arbitrator in the matter and thereafter an application was preferred u/S. 11 of the Arbitration & Conciliation Act, 1996 for appointment of an arbitrator. A notice was issued by this court on 11/8/10 by registered post for the appearance of the applicant on 21/9/10 and the notice was sent on the same address which is mentioned as the --- 5 --- applicant's address in the present application. The record of the Registry reveals that the applicant was not available on the address mentioned in the notice, thereafter this court has permitted substituted service of notice vide order dt. 2/11/11 and a notice was published in Dainik Bhaskar on 12/2/11 directing the appearance of the applicant on 14/3/11. The applicant again did not appear on 14/3/11 and therefore after hearing the non applicant, Hon'ble Shri Justice P.D. Muley (Retd.) was appointed as an arbitrator vide order dt. 14/3/11. In the present case, the record reveals that the notice was sent by the registered post on a correct address and the same address is mentioned in the cause title of the present application. The apex court in similar circumstances in the case of Basant Singh Vs. Roman Catholic Mission reported in (2002) 7 SCC 531 in para 5, 6, 9, 10 and 11 has held as under : 5. Order 9, R. 13 of Code of Civil Procedure insists that the applicant must satisfy the Court two conditions (a) that the summons was not duly served and (b) that the applicant was prevented by any sufficient cause from appearing before the Court when the suit was called on --- 6 --- for hearing. In the present case second condition is not attracted. 6. Regarding the contention of the counsel for the appellants that the summons were not duly served, as the substituted service has been published in the local daily "Aacharan" instead of "Dainik Bhaskar," we may point out that it is the evidence on record that both "Aacharan" and "Dainik Bhaskar" are the local dailies and are widely circulated in the area. In ordinary circumstances, if both the local dailies are widely circulated in the area the change of the name of the local daily from "Dainik Bhaskar" to "Aacharan" would not materially affect the service of notice by way of substituted service, deemed to have been served, and would not invalidate the effect of substituted service just because the notice for substituted service has been published in the local daily which is not ordered by the Court. It is the specific contention of the plaintiff- respondent that the notice has been published in the local daily "Aacharan" on 9-8-1986 and the said local daily is widely circulated in the area and the substituted service would construe as sufficient notice upon the defendants. We are also of the view that it is inherently probable that publication in the local daily "Aacharan" which is widely circulated in the area would have constituted a sufficient notice to the defendants. 9. Order 5, proviso to sub-rule (2) of R. 19-A of C.P.C. provides that where the summons are properly --- 7 --- addressed, prepaid and duly sent by registered post with acknowledgment due, notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons, the Court shall presume that notice is duly served. Further, S. 27 of the General Clauses Act, 1897 (in short 'Act') provides similar provision. The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence. 10. It is nobody's case that the postal addresses of the defendants are not properly addressed and, therefore, the registered summons could not be served. It is also nobody's case that the registered summons are not prepaid and not duly sent. In fact the registered summons, bearing receipt Nos. 875 and 876 dated 24-4-1986, were issued is borne out from the record. 11. Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important. Before the trial Court, the appellants were allowed to lead evidence in support of their contentions. As order to this effect was passed by the trial Court on 11-1-1991. The premises in question is occupied by two defendants jointly Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. --- 8 --- However, the defendant-Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly. Keeping in view the judgment delivered by the apex court in which a similar controversy arose in respect of service of notice, the question of recalling the order as prayed by the applicant does not arise. Not only this, the apex court in the case of S.B.P. & Company Vs. Patel Engineering Ltd., and another (2005) 8 SCC 618 and S.B.P. & Company Vs. Patel Engineering --- 9 --- Ltd., and another (2009) 10 SCC 293 has held that once an arbitrator is appointed and the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the proceedings of the arbitral tribunal during the course of the arbitration proceedings and the parties can approach the court only in terms of Sec. 37 of the Arbitration & Conciliation Act, 1996 or in terms of Sec. 34 of the Arbitration & Conciliation Act, 1996. In the present case, the arbitral tribunal has already been constituted and hearing of the matter has already taken place, the arbitrator has also passed some order in the matter as stated by the parties and therefore keeping in view the judgment delivered in the aforesaid case, the question of recalling the order of appointment does not arise. The application filed by the applicant is dismissed. (S. C. SHARMA) J U D G E BDJ