BHARAT LAMINATING CORPORATION v. FERTILIZER CORPORATION OF INDIA LTD.
1995-12-01
S.K.MAHAJAN
body1995
DigiLaw.ai
JUDGMENT S. K. Mahajan, J. - This revision is against the judgment and order dated 22.9.1982 passed by the Civil Judge, Gorakhpur in Misc. Case No. 103 of 1981 dismissing the application under Section 17 of the Arbitration Act. M/s. Bharat Laminating Corporation (hereinafter referred as the petitioner) is a registered firm dealing in supply of polythene bags to Fertilizer Corporation Limited, Gorakhpur Unit (hereinafter referred to as the respondent). There was an agreement that in case of dispute between the parties the matter would be referred to the Arbitrator to be appointed by the General Manager. The dispute arose and the matter was referred to the General Manager and the General Manager appointed Shri N. S. Bhatnagar as Arbitrator, who passed an award dated 30.6.1981 and the amount was payable by the respondent to the petitioner by 31.7.1981. Exact amount has not been mentioned in the concluding part of the award but under different heads the amount has been mentioned. 2. The application was moved on behalf of the petitioner by one Shri Nagendra Bahadur Singh on 21.10.1981. In the Court of Civil Judge, Gorakhpur and the power of attorney had been signed on 20.10.1981 for making the award rule of the court. The respondent raised objections under Sections 30 and 33 of the Indian Arbitration Act and has taken various grounds that the award has not been filed in the court alongwith the petition and the court cannot take jurisdiction under Section 14(2) read with Section 17 of the Arbitration Act. The award has been filed beyond thirty days from the date of service of notice and it is barred under Article (19) of Indian Limitation Act. The Arbitrator has also committed misconduct. It is also averred that the proper application has not been moved by the applicant as the attorney was not authorised to move the same. 3. I have heard the learned Counsel for the parties and also perused the record. Counsel for the revisionist has submitted that lower court should have summoned the award suo motu and should not have dismissed the application on technical ground that there was no award on the record. Learned Counsel further submitted that the power of attorney was filed on 20.10.1981 and application is dated 21.10.1981.
Counsel for the revisionist has submitted that lower court should have summoned the award suo motu and should not have dismissed the application on technical ground that there was no award on the record. Learned Counsel further submitted that the power of attorney was filed on 20.10.1981 and application is dated 21.10.1981. He further argued that the view of the lower court that Nagendra Singh did not have power of attorney on 20.10.1981 when he signed and certified this petition on 21.10.1981 when it was filed in the court is not correct. The lower court has committed a grave mistake in indulging the technicalities of law and not advancing substantial justice. Counsel for the respondent who appeared later on before me in Chamber submitted that since the award has not been filed and the view taken by the lower court is correct. He has invited my attention to Section 14 of Arbitration Act contemplating the situations under which jurisdiction of the court is attracted. 4. I am of the view that the lower court order suffers from infirmities and it has also resulted in miscarriage of justice on the following reasonings. 5. Firstly, the copy of the award is very much on the record and was signed by the Arbitrator. It escaped from the notice of the lower court and it has not cared to mention or discuss it. Copy of the award is just figures after the power of attorney. The court should have determined the legality of the award and should have gone to the other aspects of the case. Obviously there cannot be no other inference than that the finding of the court was based on having ignored important piece of evidence which was very much relevant and it has resulted in failure of justice. Apart from the legal aspect of this part the lower court should have discussed the existence of award on the record which attract, the jurisdiction under Section 14(2) of the Indian Arbitration Act. Section 14(2) may be quoted with advantage : "14(2).
Apart from the legal aspect of this part the lower court should have discussed the existence of award on the record which attract, the jurisdiction under Section 14(2) of the Indian Arbitration Act. Section 14(2) may be quoted with advantage : "14(2). The Arbitrator or Umpire shall, at the request of any party of the arbitration agreement or any person claiming under such party or if so directed by the court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges filing the award, cause the award, or signed copy of it, together with any depositions and document which may have been taken and proved before them, to be filed in court, and the court shall thereupon give notice to the parties of the filing of the award." 6. There is a Full Bench of this High Court has been relied by both the parties i.e. AIR 1973 All. 476 . It lays down : "The filing of an application by a party to the arbitration agreement under Section 14(2) with a prayer for court's direction to summon the award is not a condition precedent for exercise of power under Section 17 to pass a decree in terms of award. Views in AIR 1957 All. 106 and AIR 1963 All. 602 held to be not conflicting. In either case, whether the award is filed before the court on being summoned on an application by a party under Section 14(2) or the award being filed by the Arbitrator suo motu the court must proceed to give notice (of filing the award) to the parties and acting under Section 17 pass decree in terms of the award when there is no reason to remit or set aside the award." 7. In this case there was no question of summoning the award suo motu when the copy of the award was there and the lower court should have determined the dispute to do the justice after summoning the relevant record. The courts are meant to do the justice and not to indulge in the technicalities of law. The procedure is a meaning to achieve the justice and it should not be considered an end itself. Another aspect of the case that the application was not legally maintainable also does not stand to reasoning.
The courts are meant to do the justice and not to indulge in the technicalities of law. The procedure is a meaning to achieve the justice and it should not be considered an end itself. Another aspect of the case that the application was not legally maintainable also does not stand to reasoning. Power of attorney was signed on 20.10.1981 and the application was verified on 20.10.1981. There can be two dates i.e. the date of signing of the power of attorney and filing of the petition in the court. The petitioner was no doubt filed on 21.10.1981. The finding is based on irrational reasoning that the application is not filed properly. The Trial Court has stretched the technicalities and had gone beyond and which it should not have gone and as such the lower court has not appreciated the things in correct perspective. I, therefore, for the reasons recorded above hold that the lower Court's order is not sustainable and set aside the same and remit the case to the lower Court to decide in accordance with law after giving opportunity to the parties. The Revision is allowed in the light of the above observation. The matter be disposed of within three months from the date of receipt of the record as the case is very old. Revision allowed.