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1987 DIGILAW 5 (CAL)

UNION OF INDIA v. Bhattacharjee Constructions Ltd

1987-01-08

A.C.SENGUPTA, Mookerjee

body1987
JUDGMENT 1. THE short point in this Revisional Application is whether or not the learned Assistant District Judge, Siliguri had any jurisdiction to expunge one particular sentence appearing in his judgment pronounced upon an arbitration award and also the decree which followed. 2. M/s. Bhattacharjee Construction Ltd., the opposite party herein, had entered with the petitioner, Union of India, into a contract relating to construction of married accommodation for military personnel at khaprail. Certain differences and disputes having arisen between the said parties, the same was referred to arbitration by Major General gurbir Mansingh, Chief Technical Examiner, Military Engineering Services. Army Head Quarters, New Delhi. On 7th February, 1983 the said arbitrator bad made and published his final award concerning the matters referred to him. While he allowed some claims of the said contractor either in full or in part, he had rejected some others. The order of the learned Arbitrator is as follows :- " The respondents shall pay to the claimants a sum of Rs. 890000/- (Rs. eight lakhs ninety thousand only) as full and final settlement of all the disputes referred to me. On this amount a sum of rs. 480000/- (Rs. four lakhs eight thousand only) will be paid immediately and the balance amount of Rs. 410000/- (Rs. four lakhs and ten thousand only) will be paid along with the final bill on completion of the work. . The cost of the stamp paper fees amounting to Rs. 75/- (Rs. seventy five only) shall be borne by the respondents. " The opposite party Contractor had filed an application under section 14 (2) of the arbitration Act before the Court of the learned assistant District Judge, Siliguri and pursuant to the directions of the court the said award was filed. Thereupon, notices were issued upon the parties. 3. THE present petitioner had filed in the court below a petition under sections 16, 30 and 33 of the Arbitration Act praying for setting aside the award or for remitting the same for fresh decision. The present opposite party had also filed a petition for modifying the award and for passing a decree making the said award a Rule of the Court. The present opposite party had also filed a petition for modifying the award and for passing a decree making the said award a Rule of the Court. The learned Assistant District Judge by his judgment and Order No. 38 dated 28th June, 1985 had disposed of the said objections and petitions of the two parties and also had purported to pronounce his judgment upon the said award which was made part of the decree and the rule of the court. Both the ordering portion of the said judgment and the decree inter -alia contained the following words : - " The plaintiffs are hereby directed to take steps for completion of incomplete works for entitling them to get remaining Rs. 410000/- (Rs. four lakhs ten thousand only) only payable after completion of the work". 4. NEITHER the petitioner Union of India nor the" opposite party the said Contractor firm had preferred any appeal against the said judgment and decree passed by the learned Assistant District Judge, Siliguri. The opposite party Contractor, however, supported to ale in the Court of the Assistant District Judge an application under section 151 read with section 152 of the Code of Civil Procedure for amendment of or correction by way of deletion off the aforesaid direction for completion of incomplete work etc. After hearing both parties, the learned assistant District Judge, Siliguri has allowed the said application by expunging the above sentence from his judgment and also from the decree following it. Being aggrieved, by the said order, the Union of India, has filed the present Revisional Application. Mr. Das, learned advocate on behalf of the petitioner, Union of India, has submitted that the learned assistant District Judge, Siliguri had no jurisdiction to expunge the said sentence from, his judgment and decree. In case the said judgment and the decree were in excess of or not otherwise in accordance with the award, the opposite party's only remedy was by way of preferring an appeal from the said judgment and decree. But the opposite party had allowed its said right of appeal to have become barred by limitation and, on the other hand, it accepted the judgment and decree by receiving payment of the first of the two sums allowed in its favour under the said judgment and decree. But the opposite party had allowed its said right of appeal to have become barred by limitation and, on the other hand, it accepted the judgment and decree by receiving payment of the first of the two sums allowed in its favour under the said judgment and decree. We are unable to give any countenance to the above submission made on behalf of the petitioner, Union of India. According to last part of section 1? of the arbitration Act, "no appeal shall lie from such decree except on the ground that it is in excess of or not other wise in accordance with the award". These words are indicative of the limited grounds upon which appeal may be preferred against a decree which follows a judgment pronounced according to an award filed in court. Grounds of an appeal must be confined to those indicated in section 17 of me arbitration Act. But those words in section 17 of the Arbitration Act in no way curtail the powers of the. court which pronounced such judgment and decree to amend or vary its judgment and decree in accordance with the provisions of the Code of Civil procedure which have been made applicable subject to the Arbitration act and the Rules made under section 41 of the said Act. The Arbitration act and the Rules made there under do not deprive the court of its inherent powers under section 151 of the Code read with section 41 of the Arbitration Act (in this connection see Vishnu Agencies pvt. Ltd. and Ors. v. Sriram Sahakari Griha Nirman Samity Ltd. and Ors. 80 CWN 863. We at e also inclined to think that the court which pronounced judgment and decree upon an award also possesses power to review its judgment and decree provided the appropriate grounds are made out, there is also a long catena of judicial decisions which have upheld the High Court's power under section 115 of the Code of Civil Procedure to correct errors of jurisdiction in a judgment end decree passed upon an arbitration award (see Brojendra Kumar pal and Anr. v. Puma Chandra Pal and Anr. AIR 1931 Cal. 53, Ramashwami Chettarji venkatarama Aiyar and Ors. AIR 1926 Mad. 201. Mt. Mariam and Anr., v, Mt, Amina and Ors. AIR 1936 Ail, 65, Ganesh chandra misra v. Artetrana Misra and Ors., AIR 1965 Ori 17 , etc.. 5. v. Puma Chandra Pal and Anr. AIR 1931 Cal. 53, Ramashwami Chettarji venkatarama Aiyar and Ors. AIR 1926 Mad. 201. Mt. Mariam and Anr., v, Mt, Amina and Ors. AIR 1936 Ail, 65, Ganesh chandra misra v. Artetrana Misra and Ors., AIR 1965 Ori 17 , etc.. 5. VIEWED in this light we are bound ' to uphold the trial court's order expunging the aforesaid words from his judgment and decree. We have already quoted the ordering portion of the leaded Arbitration' under which the opposite party awarded a sum of Rs. 890000/-as test and, final settlement of the disputes referred to him Of this amount, a sum of Rs. 480000/- was immediately payable and the balance rs. 410000/- was to be paid along with the final bill on completion of the work. Whether or not the opposite party contractor ought to be allowed or directed to complete the incomplete works was not part of the reference to the learned arbitrator and the learned arbitrator did not direct in his award the Contractor opposite party to take steps for completion of incomplete works. after the award was filed in court, in his order dated 28th. June, 1985, the learned Assistant district Judge had over-ruled the objection of the Union of India that the. award, did not provide as to what was to be cone in respect of the balance sum of Rs. 410000/- payable to the Contractor after completion of the works if the Contractor did not complete the work at all. In the body of his judgment and order dared 28th June, 1985, the learned Assistant District Judge, Siliguri very pertinently pointed out that the contract between the parties itself provided to meet such circumstances and the contract also provided the Union of India with the means of realising' the amount on such occasion from the contractor. The learned Assistant District the petitioner, Union of India, contended that the directions in the ordering portion of the judgment and decree upon the plaintiff (meaning the Contractor) to take steps for completion of incomplete works were in accordance with an award or that the same had formed part of the reference to the Arbitrator. The learned Assistant District the petitioner, Union of India, contended that the directions in the ordering portion of the judgment and decree upon the plaintiff (meaning the Contractor) to take steps for completion of incomplete works were in accordance with an award or that the same had formed part of the reference to the Arbitrator. There is no substance in his submission that only because the opposite party Contractor did not prefer any appeal against the judgment and decree, he was not entitled to apply before the trial court for expunging the said totally void directions for taking steps to complete the incomplete works of construction. If this technical objection was upheld and the opposite party is relegated to pursue his remedy by way of appeal, there would be unnecessary proliferation of proceedings. Time for preferring appeal from the judgment and decree in question having expired, question of condoning delay would arise. In case the delay is condoned, the appeal would be heard on merits. When we are convinced that the directions in the judgment and the decree upon the plaintiff to. take steps for completion of incomplete works were void a initio, we cannot ask the plaintiff opposite party to adopt a round-about method for expunging the said directions. We had also pointed out: that even in case had upheld the technical objection of the petitioner, Union of India, taken in this Revisional Application against expunging the said directions, this court could have suo motu invoked its revisional powers to expunge from the judgment and decree of the trial court, the said null and void directions. But we have already held that the trial court itself had inherent jurisdiction to expunge the same. For the forgoing reasons, we dismiss this Revisional Application. There will be no order as to costs.