JUDGMENT :

1. The present applicant was the respondent in a proceeding under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as, “the 1996 Act”), which was disposed of on February 16, 2023 by appointing an Arbitrator to resolve the dispute between the parties. It was recorded in the said order that in spite of service of notice the respondent had not entered appearance.

2. Learned counsel appearing for the present applicant submits that notice of the application under Section 11 and/or the invocation under Section 21 of the 1996 Act had not been served at the proper address of the applicant.

3. It is argued that as per the Share Purchase Agreement between the parties dated April 30, 2021, the current Directors would have no further liability after the takeover date, that is, April 30, 2021 in excess of the amount of Rs.12,58,79,538/-. In the said Agreement, there was no mention of the present claims being made against the applicant-Company after the takeover.

4. Learned counsel, on such score, places reliance on Clause 4.1 of the Share Purchase Agreement.

5. It is contended by the petitioner that the present respondent (petitioner in the application under Section 11) consistently served communications at a wrong address of the applicant-Company. In fact, even the invocation under Section 21 was made at the previous address of the Company, despite the address of the Company having changed in the records of the Registrar of Companies prior thereto.

6. Learned counsel places reliance on the Minutes of the Second Sitting of the Arbitrator dated April 18, 2023, appointed by the order sought to be recalled, where it was mentioned that the Arbitral Tribunal had forwarded the Minutes of the First Sitting dated March 27, 2023 to the respondent at the address being Room No.206-7, 7 Grant “Road”, 2nd Floor, Kolkata-700 012 which returned with the postal endorsement ‘no such person in this address’. It is argued that the changed address of the Company after the takeover is not at ‘Grant Road’ but ‘Grant Lane’.

7. In the same Minutes, it was recorded that the notice dated March 27, 2023 had also been sent to the previous address of the applicant-Company which returned with the postal endorsement ‘left’. The notice sent to another address of the Company returned with the postal endorsement ‘no such Company in this address’. It is submitted that the address of the Company was changed much prior to the filing of the application under Section 11. However, the old address of the Company was mentioned in the said application and notice sought to be served at the same, which resulted in service not being effected on the present applicant.

8. Leaned counsel places reliance on the second paragraph of the reply dated March 14, 2022 given by the present applicant-Company where the principal place of business and corporate office had been indicated.

9. In paragraph no.2, it was mentioned that the legal notice dated February 28, 2022, which was the premise of the invocation of arbitration, was sent to the applicant-Company by the employee of the erstwhile management of the Company through courier on March 9, 2022. Such statement itself, it is argued, indicated that the address of the Company had changed.

10. However, the present respondent (petitioner in the Section 11 application) continued to serve notices on the erstwhile employee of the Company at his personal office address and not at the address of the Company. Hence, it is submitted, the entire bunch of correspondence made by the present respondent was served at wrong addresses and the application under Section 11 had also been filed by suppressing the correct address.

11. Learned counsel for the petitioner places reliance on Section 12, sub-sections (2) and (4) of the Companies Act, 2013 (for short, “the 2013 Act”) which pertain to change of registered office of the Company. Reliance is also placed on Rules 25 and 27 of the Companies (Incorporation) Rules, 2014 (in brief,