Burden to rebut the presumption of service lies on the party, challenging the factum of service #indianlaws

 The presumption under Section 114(f) of the Evidence Act read with Section 27 of the General Clauses Act is rebuttable on a consideration of evidence of flawless character

In the present set of Petitions, interim award as passed by the sole Arbitrator was challenged by way of objections under Section 34 of the Arbitration and Conciliation Act, 1996 (Act).   The petitioners had prayed that the objections were filed in time by counting limitation from the ‘date of knowledge. It was stated that the interim award was neither received through post nor through email.  The AD card addressed to petitioner No.1 bears the signatures with the date 5th April, 2010  are not that of petitioner No.1 which  can be matched with the other papers filed by him before the  arbitration proceedings,

The submissions however were objected by the Respondent and various documents were refered to show that the Petitioners had received the post at the address mentioned while sending the signed copy of the interim order by speed post. The other documents filed by the respondents by way of declaration, affidavits, stamp papers (purchased by the petitioner), wedding card advertisement and from various Government authority disclosed the same address where the signed copy of the Award was dispatched.

It was argued by the Petitioner that speed post service of award is not a sufficient compliance under the provisions of the Act. As per scheme of the Act and the nature of controversies involved in the issue, the signed copy of the Award is either to be handed over to the petitioners personally by the Arbitrator or to be served to the parties by sending it by registered A.D. post.

. The Supreme Court in Tecco Trichy Engineers case observed that under Section 31(5) the mere delivery of “any kind of a copy of the Award” is not sufficient but the said provision requires the “delivery of a copy of the Award that is duly signed by the members of the Arbitral Tribunal.” Further, it was held that the period of limitation prescribed under Section 34(3) of the Act “would start running only from the date a signed copy of the Award is delivered to/received by the party making the application for setting it aside under Section 34(1) of the Act.” Therefore, the two factors highlighted are the Award having to be signed by the learned Arbitrator and a certified copy thereof having to be delivered to the parties to the arbitral proceedings who propose to make an application to challenge it under Section 34(1) of the Act.  the period of limitation prescribed under Section 34(3) of the Act would start running only from the date a signed copy of the award is delivered to/received by the party making the application for setting it aside under Section 34(1) of the Act. The legal position on the issue may be stated thus. If the law prescribes that a copy of the order/award is to be communicated, delivered, dispatched, forwarded, rendered or sent to the parties concerned in a particular way and in case the law also sets a period of limitation for challenging the order/award in question by the aggrieved party, then the period of limitation can only commence from the date on which the order/award was received by the party concerned in the manner prescribed by the law.”    In the present case, the signed copy was sent by speed post. It was not delivered personally. E-mail copy sent to the address of petitioners without bearing the signatures of the sole Arbitrator. The signature appearing on A.D. Card placed on record after allegedly served does not match the Actual signature of the Petitioner no. 1.

Another issue in this case related to Section 114 illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 which mandates that there is a presumption that the addressee has received the letter sent by registered post but it further mandates that the presumption is rebuttable on a consideration of evidence of flawless character by showing that the address mentioned on the cover was incorrect and postal authorities never tendered the registered letter to him. The burden to rebut the presumption lies on the party, challenging the factum of service.

In the present case, the presumption of service was held to be doubtful and the grounds opposing maintainability of Petitions were rejected.

[Yogesh Jain and Anr. v Rakesh Jain and Ors.]

(Delhi HC, 04.06.2014)