Bom HC | Onus to show proper notice of arbitrator’s appointment is on respondent if disputed by petitioner

Bombay High Court: S.V. Gupte, J., set aside an arbitral award for respondent’s failure to show proper notice of appointment of the arbitrator to the petitioner.

The petitioner challenged the subject arbitration award passed by a sole arbitrator under Section 34 of the Arbitration and Conciliation Act, 1996 on the ground, inter alia, that he did not receive a notice of arbitrator’s appointment as well as arbitration proceedings.

Divesh Chamboowala instructed by Pradip R. Kadam appeared for the petitioner. While Akshay Chikhale instructed by Priya Crasto represented the respondent.

The respondent submitted that the notice was duly served upon the petitioner. They produced an acknowledgment slip purportedly signed on behalf of the petitioner. Per contra, the petitioner disputed that the signatures did not belong to him and nor to any of his family members.

Having considered the impugned award, the High Court observed, “Once the petitioner disputes receipt of notice and the record prima facie bears out the petitioner’s case, the onus to show that there was proper notice of appointment of arbitrator as well as of arbitration proceedings is on the respondents. Leave aside discharging that onus, the respondents have not even filed a reply to the arbitration petition herein.”

Repelling respondent’s further contention that the notices issued were returned “unclaimed” which amounted to good service, the court stated, “In the present case, there is nothing to suggest that there was any postal intimation sent by the post office to the petitioner that the packet of service was retained by it, calling upon the petitioner to collect the same. In the premises, it is not possible to accept the respondent’s case that a mere return of the packet with the remark “unclaimed” amounts to good service.”

In such view of the matter, the Court allowed the petition and set aside the impugned award.[Nuruddin Latif Naik v. Mahindra and Mahindra Financial Services Ltd., 2019 SCC OnLine Bom 526, dated 20-03-2019]

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