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1992 DIGILAW 344 (CAL)

N. B. C. C. Ltd v. Patel Construction Co

1992-08-28

S.K.Mukherjee

body1992
Judgment 1. THE present Revisional Application is directed against Order No. 20 dated 16th of March, 1991 passed by the learned Assistant District Judge, 9th Court. Alipore, in Misc. Case No. 36 of 1990 arising out of the Execution Case No. 14 of 1990 filed by the Opposite party, for execution of a decree, passed on an arbitration award, dated 19th July, 1983. The application which stood rejected was one under Section 47 read with Section 151 of the Code of Civil Procedure. 2. THE necessary facts, leading to the passing of the impugned order, may be outlined as follows :- An arbitration proceeding culminated with an award dated 29th July, 1983 which was filed, giving rise to Title Suit No. 18 of 1983 of the 9th Court of the Learned Assistant Judge. Alipore. In the said suit the plaintiff, at different stages, filed two applications. The first was under order 7 rule 10 read with Section 154 of the Code of Civil Procedure, inter alia, raising a contention that the subject matter of arbitration was beyond the jurisdiction of the Court of the Learned Assistant District judge 9th Court, Alipore, and as such plaint was liable to be rejected. The Judgment Debtor also filed another application under order 6 rule 17 of the Code of Civil Procedure seeking to introduce the plea of absence of jurisdiction of the concerned Court by way of amendment. As far as the application for amendment was concerned, the same was rejected by the Learned Trial Judge by his order dated 4th June, 1986 and the same order, not having been moved against in any higher Court, became final. As far as the application for rejection of the plaint was concerned, the learned Trial Judge, ultimately by his order dated. 12th February, 1986, directed the same to be heard along with the suit. After about more than hundred adjournments, the suit was ultimately decreed in terms of the award, on or about 14th of March, 1988v Such order was again challenged by an application under Order 47 Rule I and read with section 151 of the Code of civil Procedure, raising the question of lack of jurisdiction but such application was dismissed by order No. 82 dated 19th May, 1990. At this stage, it should be noted that, notwithstanding a direction for simultaneous hearing, the application made on behalf of the Judgment Debtor under Order 7 Rule 10/151 of the Code of Civil Procedure remained un disposed and no notice of court to the pendency of the same was drawn by either of the contesting parties throughout. As stated above, at the execution stage, an application was filed by way of an objection on behalf of the Judgment Debtor, inter alia, canvassing the said point which stood rejected by the impugned order. 3. IN the back ground of the aforesaid facts, we have been invited to decide whether the decree in question could be said to be nullity and whether on such ground the execution case was liable to be dismissed after setting aside the impugned order. We repeat that the basic argument made on behalf of the judgment Debtor is that the Trial Court, which passed the decree, lacked inherent jurisdiction as entire transaction took place within the jurisdiction of the Midnapore Court. 4. IT is an admitted position in law that jurisdiction can be broadly classified into two types: (a) Inherent Jurisdiction; and (b) Technical Jurisdiction. Such classification arises from the nature of the factors which determine the jurisdiction and such factors may relate to: i) subject matter, ii) person iii) territorial limit, and iv) pecuniary limit. It is well settled that in case of inherent lack of jurisdiction, which is based on factor i) above the decree becomes a nullity and consent or waver and acquiescence by the Judgment Debtor does neither render the decree valid nor executable; in cases of technical jurisdiction, however, which is based on the factors ii), iii) and iv) mentioned above, the waiver by a party or consent by him, may attribute to the decree immunity from challenge on the ground of lack of jurisdiction. We would like to add, at this stage, that all though Section 2 (c) of the Arbitration Act defines a Court, the Jurisdiction of such Court has been judicially accepted to be determinable by application of the provisions of Sections 15 to 21 of the Code of Civil procedure. We would like to add, at this stage, that all though Section 2 (c) of the Arbitration Act defines a Court, the Jurisdiction of such Court has been judicially accepted to be determinable by application of the provisions of Sections 15 to 21 of the Code of Civil procedure. By way of authorities for the above propositions of law, reference may be made to the cases of Jyotiprakash Chattoraj and Another vs. Bagala kanta Chowdhury and Others reported in 36 Calcutta Law Journal page 124; bahrein Petroleum Co. vs. P. J. Pappu reported in AIR, 1966 SC 634; Hiralal patni vs. Kalinath reported in AIR K962 SC 1999 which followed the ratio pronounced in Ledgard us. Bull reported in 13 I. A. 134, Basudev Bhanjibhai modi vs. Rajabhai Abdul Rehman reported in AIR 1970 SC 1475 and Hakam singh vs. M/s. Gammon India Ltd. reported in 1971 SC 740. Applying the aforesaid ratio to the facts of the present case, we are of the view that the Revisional Petitioner has failed to make out a case for interference by us. The Trial Court was right in its reason that the decree in question cannot be said to be one amounting to nullity and as executing Court it had no jurisdiction to go behind the decree and refuse its execution. The nature of contention, raised on behalf of the petitioner, clearly shows that the jurisdiction, which was alleged to be absent, was of a technical nature, as distinct / distinguished from that which is inherent. Records of the Proceedings further indicate that the petitioner, although raised the technical point of lack of jurisdiction, had participated in the proceedings and such participation could be treated to be an acquiescence on its part. Secondly, if we go to the merit of the contention, without hesitation, we can say that the contention is devoid of any merit. The Court, which passed the decree, on the allegations in the plaint, did have jurisdiction. We would like to refer to our decision in the case of national Hydro Electric Power Corporation Ltd. vs. Sova Enterprise reported in air 1991 Calcutta 324. The above finding of ours shows that notwithstanding a technical default on the part of Trial Court, the defendant cannot be said to have suffered a failure of justice within the meaning of clause 3 of Section 21 of the Code of Civil Procedure. 5. The above finding of ours shows that notwithstanding a technical default on the part of Trial Court, the defendant cannot be said to have suffered a failure of justice within the meaning of clause 3 of Section 21 of the Code of Civil Procedure. 5. FOR the aforesaid reasons, the application fails and is dismissed. The order of the learned Assistant District Judge impugned in the revisional application, is affirmed. There will be no order as to costs. Application dismissed.