IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.437 OF 2009 IN ARBITRATION PETITION NO.441 OF 2008 Paresh Choudhary ...Petitioner Vs. Mahesh Advani ...Respondent ---- Mrs. Sunita R. Tiwari with Mr. F.S. Irani for Petitioner Mr. Hakim Salim A.R. for Respondent ---- CORAM: V.M. KANADE J. DATED 18TH AUGUST, 2009 P.C. 1. The Petitioner has filed this Arbitration Petition under section 34 of the Arbitration and Concilation Act, 1996 (hereinafter referred to as “the said Act”), challenging the ex-parte award dated 13th February, 2007 passed by the Learned Arbitrator Justice A.B. Palkar (Retd.) 2. Brief facts are as under:- 3. The Petitioner is a proprietory concern, doing retail business in sale and supply of office stationery including printer cartridges, toners etc. under the firm name of M/s. Multiforms, a self proprietory concern of the Petitioner. The Respondent is carrying on business as reseller, stockist and dealer in office stationery. The Respondent, by his letter dated 10th September, 2001 informing him that an amount of Rs.27,39,325/- was due and payable as per the statement of accounts. Thereafter, a second letter was sent by the Respondent dated 10th October, 2001, informing him that since month had passed after the letter dated 10th September, 2001, it was presumed that the statement was in order. The Respondent, thereafter, filed two summary suits against the Petitioner in this Court being Summary Suit No.1983 of 2004 which was filed by the Respondent on 21st June, 2004 against M/s. Multiforms (of which the Petitioner is the proprietor) for recovery of a sum of Rs.18,09,968.97 in respect of three invoices. The Respondent also filed another Summary Suit on 21st July, 2004 vide Summary Suit No.2312 of 2004 against the Petitioner and his proprietory firm M/s.Dolphin Computers for a sum of Rs.2,95,567/- in respect of two invoices. In both the suits, consent terms were filed and both the parties agreed to refer the said suits to an Arbitrator. Consent terms were signed by the Petitioner and Respondent and their respective Advocates and it was specifically stated in the consent terms that the said two suits will be referred to the Sole Arbitrator Hon'ble Justice A.B. Palkar (Retd.). After the matter was referred to the learned Arbitrator, the Petitioner and the Respondent remained present before the Arbitrator on 16.2.2006. According to the Petitioner, his Advocate informed him that the Arbitrator will look into the matter and defenses as set out in his affdiavits filed in the Court opposing the claim and that he will inform the Petitioner when he has to remain present before the Arbitrator again. According to the Petitioner, he was never served with any Statement of Claim or about the monies he had to deposit with the Arbitrator or about filing any written statement and counter claim etc. According to the Petitioner, he appeared before the Arbitrator along with his advocate and this fact and the presence of the Petitioner and his advocate was not recorded in the Roznama. According to the Petitioner, he did not receive any information and he did not attend any hearing before the Arbitrator as he was waiting for his advocate to inform him accordingly and an ex-parte award dated 13th February, 2007 was passed against the Petitioner. According to the Petitioner he came to know about the ex-parte award dated 13th February, 2007 passed by the learned Arbitrator only when the Execution Application No.124 of 2007 was served upon him on 7th May, 2008 when the Respondent along with Bailiff/Representative from the Sheriff's Office came to attach the property of the Petitioner. Thereafter, he approached to his advocate who told him that he could not appear for him in the matter. Thereafter he approached his present advocates in the matter to take search of the Execution proceedings in the office of this Hon'ble Court. According to the Petitioner, the award was served on the Petitioner from the office of the learned Arbitrator through the courier on 20th April, 2007 and shown to be signed by one Manoj. According to the Petitioner, the courier slip does not bear his signature nor any rubber stamp of either M/s. Multiforms or M/s. Dolphin. 4. The Petitioner, thereafter, filed Chamber Summons No. 774 of 2008 for setting aside and for raising the attachment levied on his properties in the Execution Application No.124 of 2007. The Chamber Summons, however, was dismissed by order dated 24th June, 2008 passed Her Ladyship Justice Roshan Dalvi. Thereafter, the Petitioner has filed this present Petitioner under section 34 of the said Act on 6th August, 2008. 5. In the said Petition, the Petitioner took out a Notice of Motion No.437 of 2009. However, ad-interim relief was refused by this Court by its order dated 28th July, 2009. Thereafter, the Arbitration Petition along with Notice of Motion was kept for the hearing at the admission state. 6. I have heard the learned Counsel appearing on behalf of the Petitioner and the Respondent at length. 7. The learned Counsel appearing on behalf of the Respondent has raised a preliminary objection and submitted that the arbitration petition was barred by law of limitation. He submitted that the petition was not filed within a period of three months from the date of the arbitration award which was passed on 13th February, 2007 or within 30 days therefter. He submitted that no explanation was given by the Petitioner for delay caused in filing this petition and, therefore, the said arbitration petition is liable to be dismissed on that count alone. 8. The learned Counsel appearing on behalf of the Petitioner, on the other hand, submitted that the Petitioner came to know about the ex-parte award only after his properties were attached in May, 2008. Therafter, he had preferred the Chamber Summons for setting aside the attachment and after the Chamber Summons was dismissed on 24th June, 2008, the present Petition was filed on 6th August, 2008. The learned Counsel for the Petitioner submitted that the Petitioner was not aware about the arbitration proceedings and that no notice of the proceeding was served on the Petitioner either by the Learned Arbitrator or by the Respondent herein. He further submitted that the Petitioner has good case on merits and that amount of Rs.11,95,301.55 advanced by the Petitioner to the Respondent was not taken into consideration. The Learned Counsel appearing on behalf of the Petitioner then submitted that the invoices were false and fabricated. He submitted that, therefore, on that ground the ex-parte award was liable to be quashed and set aside since not notice was served on him. 9. The learned Counsel appearing on behalf of the Respondent, on the other hand, submitted that all these pleadings have been raised by the Petitioner in the Chamber Summons which was filed in the execution proceedings and all these submissions were rejected by the Learned Single Judge. He submitted that the record clearly indicates that the Petitioner was very well aware about the proceedings which were commenced before Justice A.P. Palkar (Retd.) and that the roznama clearly shows that the Petitioner had appeared on the first date before the Arbitrator and, thereafter, deliberately he did not remain present. He submitted that even on merits, the Petitioner did not have any case and, therefore, the Petition, challenging the arbitration award was liable to be dismissed. 10. In the first place, there is a much substance in the submission made by the learned Counsel appearing on behalf of the Respondent. There is a gross delay in filing this arbitration petition. Ex-parte award was passed by the Arbitrator on 13th February, 2007 and the copy of the award was served on the Petitioner by the learned Arbitrator directly after it was passed. The award was sent by courier by the Respondent to the Petitioner on his business address, which was received by him. The Respondent had annexed a copy of the acknowlegment showing that the award was received by the Petitioner on 20th April, 2007 at Exhibit 11, is the acknowledgment which clearly shows that the said packet, which was sent by Justice A.B. Palkar (Retd.) has been received by the Petitioner. The contention of the Petitioner, therefore, that he learnt about the award on 7th May, 2008, does not appear to be correct. 11. Even his contention that he was not served with the copy of the statement of claim or the further dates, also is not correct. In the minutes of the meeting held on 17th April, 2006, it has been recorded by the Arbitrator that notice was issued to the Respondent Dolphin Computers and Mr. Paresh Chaudhary for appearance on the next date i.e. 16th June, 2006 at 4.00 p.m. Prior to that minutes of meeting held on 16th February, 2006 also records that the Petitioner was present and the next meeting was fixed on 17th April, 2006. Thereafter, the Arbitrator Justice A.B. Palkar by his letter dated 19th April, 2006 had written a letter to the Petitioner herein, informing him about the next date. Thereafter, the minutes of meeting held on 24th August, 2006 also records that none appeared on behalf of the Petitioner even though the notice was served by courier. The matter, therefore, kept for ex-parte hearing on 15th September, 2006. On 15th September, 2006, again the Petitioner or his representative did not remain present. The matter was kept for ex-parte hearing on 13th October, 2006. A copy of the statement of claim was sent by the Respondent dated 10th March, 2006, which was received by the Petitioner herein who has signed acknowledging the receipt of the said letter. A copy of the amendment statement of claim was also served on the Petitioner herein. This clearly discloses that the contention of the Petitioner that he was not aware about the various dates and proceedings before the Arbitrator and that the statement of claim and other documents were not served on him is patently incorrect. Apart from that, even according to the Petitioner after he came to know about the ex-parte award, he did not file an arbitration petition under section 34 of the said Act instead he preferred a Chamber Summons in the Execution Application. In the Arbitration Petition also, no explanation has been given for delay caused in filing the petition. The petitiion , therefore,which is filed under section 34 is beyond the period of limitation prescribed under the said Act and, therefore, is not maintainable. 12. The other submissions made by the learned Counsel appearing on behalf of the Petitioner, even otherwise, also cannot be accepted. The petition under section 34 of the Arbitration Act can be entertained only on the grounds mentioned in section 34. All the grounds, which are raised in the petition and submissions which were made by the Learned Counsel for the Petitioner, even on the merits of the case, in my view, cannot be agitated in the petition under section 34 of the Arbitration and Conciliation Act, 1996. Particularly, when the Petitioner was very well aware about the arbitration petition which had commenced before Justice A.B. Palkar (Retd.). Consent Terms which were filed by the parties in this Court clearly mentioned that the matter will be referred to Justice A.B. Palkar (Retd.) as a Sole Arbitrator. The Petitioner appeared before the Arbitrator on the first date of hearing and, thereafter, did not deliberately appear before the Arbitrator though notices were sent by the Arbitrator by courier which were clearly received by him. The statement of claim which was also received by him. The contention of the Petitioner that he was not aware about the proceedings, therefore, pulpably false and the record and proceedings before the Arbitrator clearly indicate that he was duly served and was informed about the dates from time to time. The Petitioner also came out with the false plea that on the first date the Petitioner and his advocate had remained present before the Learned Arbitrator. The record and and proceedings clearly indicate that the Petitioner alone present before the Arbitrator and was aware about the next date. The Petitioner, therefore, clearly raised a false contention that his advocate informed him about the next date. The Roznama, however, indicates that the Petitioner's Advocate was not remained present on the first date before the Arbitrator. The Petitioner, therefore, has tried to raise false plea, which is relied from the record and proceedings. There is, therefore, no substance in the submissions made by the learned Counsel appearing on behalf of the Petitioner. Arbitration Petition is, therefore, dimissed. Notice of Motion does not survive and that is also disposed of accordingly. V.M. KANADE J.