G4S Secure Solutions (India) Pvt. Ltd. Vs. LI Consulting Private Limited - (High Court of Delhi) (23 Aug 2021)

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 address or mailing address

MANU/DE/1756/2021

Arbitration

The Petitioner, a company incorporated under the Companies Act, 1956, has filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('Arbitration Act'), praying to appoint any person, as present Court may deem fit and proper in the facts and circumstances of the present case, as a Sole Arbitrator, to enter upon reference in order to adjudicate all disputes that have arisen between the Petitioner and the Respondents.

It is clear from the express language of Section 3 of the Arbitration Act that, 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 address or mailing address. However, if none of the said places is found after making a reasonable inquiry, 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 a registered letter or by any means, which provide a record of an attempt to deliver.

In the present case, it is established that an attempt to deliver the notice dated 24th September, 2018 was made at the Petitioner's address. This was the address at which the notices were required to be served in terms of the Contract. The postal receipts also establish that, the notice was dispatched at the registered office of the Respondent and the tracking report indicates that, the concerned postal department had issued it for delivery. Thus, it must be accepted that an attempt to deliver, was made.

Even if it is accepted that, the notice was not received by the Petitioner at its registered office, it is established that an attempt to deliver was made at the address on which the notices were agreed to be delivered by the parties, in terms of the Contract. The contention that, the present petition is not maintainable for want of notice under Section 21 of the Arbitration Act cannot be accepted.

Thus, present Court is not required to enter into any adjudicatory exercise to decide whether the disputes are barred by limitation. However, in cases where it is, ex-facie apparent and is established that, the disputes are either not arbitrable or barred by limitation, present Court would not appoint an arbitrator as that would be an exercise in futility.

The Petitioner had contended that, there were extensive communications between the parties in respect of the payments due and outstanding. The Petitioner has also shared an email dated 8th March, 2016 whereby the Respondent had stated that it had full intention of paying the dues to the petitioner but had requested certain details to ascertain the same. The Respondent had further explained that, the Respondent was unable to pay the amount due to the Petitioner, in one trench and 'in one go' due to its financial condition. Present Court is unable to accept that the Petitioner's claims are ex-facie barred by limitation and, the present petition is liable to be rejected.

Present Court is of the view that, the contention advanced on behalf of the Respondent that the claims made by the Petitioner are barred by limitation, is a contentious one and does not fall within the standards of examination under Section 11 of the Arbitration Act. Accordingly, present Court appoints Arbitrator to adjudicate the disputes between the parties falling within the scope of the Arbitration Clause. Petition allowed.

Tags : DISPUTE APPOINTMENT ARBITRATOR