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1998 DIGILAW 158 (GAU)

Union of India v. Partha Pratim Chakraborty

1998-06-03

H.K.KUMAR SINGH, V.DUTTA GYANI

body1998
H. K. K. Singh. J. This first appeal is directed against the judgment and decree dated 5.3.97 passed by the learned Assistant District Judge No. 1, Cachar, Silchar in Title Suit No.178 of 1992. 2. A contract agreement bearing No.EE/SLC/4/77-89 dated 24.6.88 was executed between the appellant and respondent for construction of additional staff quarters for AIR at Silchar under 7th Plan. As a dispute arose, respondent contractor approached the Court under section 20 of the Arbitration Act (hereinafter referred to as 'Act'). By an order of the Court Sri AK Deb Laskar was appointed as sole Arbitrator to adjudicate upon the dispute between the parties. Arbitrator entered into the reference and after considering the claims and counter claims of the parties made the Award dated 22.11.96 awarding a sum of Rs. 2,12,500/- with interest at the rate of 25% as compensation and also a costs of Rs.25,500/- against the appellant and the Award was filed before the Court below which accepted the Award and made it Rule of the Court and passed the decree in terms of Award on 5.3.97. 3. Mr. KN Choudhury appearing for the appellants has submitted that the learned Court below without giving any notice to the appellant of the filing of the Award held that there was no objection and passed the impugned order. Thus, according to the learned counsel the Award is not sustainable in law and thus, by way of filing the present appeal the appellant has challenged the legality of the judgment and decree of the Court below. On the other hand, Mr. PC Barpujari appearing for the respondent supported the judgment and decree. 4. On filing of the-award, the Court has to give notice to the parties of die filing of the Award as required by section 14 (2) of the Act, which reads as follows : "14. Award to be signed and filed-... On the other hand, Mr. PC Barpujari appearing for the respondent supported the judgment and decree. 4. On filing of the-award, the Court has to give notice to the parties of die filing of the Award as required by section 14 (2) of the Act, which reads as follows : "14. Award to be signed and filed-... (2) The Arbitrators or umpire shall, at the request of any party to 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 of filing copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give note to the parties of the filing of the Award." (underline is mine) 5. Again, in exercise of the power under section 44 of the Act, this High Court has made Arbitration Rules and the 308(111) also provides that the form (P 3) (appended in the Rules), so far as it can be made applicable, shall be used with necessary modifications in issuing the notice required to be given under section 14 (2) of the Act. Thus from a reading of the section 14 (2) of the Act and Rule 308 (III) of the High Court Rules, it is clear that notice in the prescribed form has to be issued to the parties of the filing of the Award before the Award is made a Rule of the Court. 6. As the learned counsel for the appellant has strenuously urged that no notice whatsoever was issued by the Court to the present appellant, the concerned record which was requisitioned has been perused by us. Relevant orders as disclosed by the order sheets as follows : "29.11.96 : Case record put along with the original Award passed by the learned Arbitrator dated and signed on 22.11.96 which is within time. Hence Award is accepted. Fixed for filing written objections if any for setting aside the Award as required U/s 30 of the Act on 7.1.97. SdAUCGogoi, 29.11.96 7.1.97 : No written objections filed. Hence fixed for hearing on 25.2.97. SdAUCGogoi, 7.1.97 29.1.97 : Objection not heard. Fixed to order on 25.2.97. Sd/-UCGogoi,29.1.97 25.2.97 : Heard both sides. Hence Award is accepted. Fixed for filing written objections if any for setting aside the Award as required U/s 30 of the Act on 7.1.97. SdAUCGogoi, 29.11.96 7.1.97 : No written objections filed. Hence fixed for hearing on 25.2.97. SdAUCGogoi, 7.1.97 29.1.97 : Objection not heard. Fixed to order on 25.2.97. Sd/-UCGogoi,29.1.97 25.2.97 : Heard both sides. Fixed for order on 5.3.97. Also heard both sides on the petition of learned Arbitrator dated 26.11.96 regarding unpaid bill amounting to Rs. 1,500/- to the Arbitrator by the OP OP side shall pay the said amount of Rs.l,500/-(one thousand five hundred) to the Arbitrator. Sd/- UC Gogoi, 25.2.97. 5.3.97: Judgment delivered today by writing in separate sheets dated signed and placed below in the record. Plaintiff's suit is decreed on contest as per terms of the arbitration Award. The Executive Engineer (C) CCW, AIR, Silchar (defendant No.4) shall make payment of the decretal amount within' a period of three (3) months from the date of this order. Decree be prepared accordingly. Sd/-UC Gogoi, 5.3.97" 7. The above orders revealed that the learned Assistant District Judge No. 1 has not proceeded with the case property. As per the orders as recorded above, on 29.11.96 notice for filing of the Award was issued. And on 7.1.97 it was recorded that no objection was filed and the case adjourned for hearing on 25.2.97 but the case was again put up on 29.1.97 but the case was refixed for hearing on 25.2.97 and on that day it was recorded that both the parties were heard and ultimately on 5.3.97 judgment was passed. Concerned records also does not disclose whether any notice was ever issued for filing of the Award. In absence of issuance of any notice upon the parties the question of filing of any application for setting aside of the Award does not arise. It is also not disclosed in the order sheets as to whether notice was ever issued as per the order dated 29.11.96. The time prescribed under Article 119 (b) of the Limitation Act, 1963 for filing of an application for setting aside of the Award is 30 (thirty) days from the date of service of notice of the filing of the Award. The time prescribed under Article 119 (b) of the Limitation Act, 1963 for filing of an application for setting aside of the Award is 30 (thirty) days from the date of service of notice of the filing of the Award. And even if it is taken that on 25.2.97 the learned counsel for the appellant herein appeared before the Court and hence presumed that the learned counsel had notice of the filing of the Award on that day i.e. 25.2.97, the said Award could not have been made the Rule of the Court before the expiry of the period of 30 (thirty) days from the date of notice of the filing of the Award. Thus, we are constrained to observe that the learned Assistant District Judge has not proceeded with the case according to the provisions prescribed under law. 8. Mr. Borpujari has raised objection regarding the maintainability of the present appeal. The learned counsel has submitted regarding scope of appeal provided for under section 39 read with sections 30 and 33 of the Act. The submission of the learned counsel on point of law regarding the grounds of challenge of the Award, in view of the fact that the Award was made Rule of the Court without giving any notice, is not relevant. 9. This Court cannot sit as an idle spectator when it has been discovered that a patent error has been committed by one of the subordinate Court, rather, it is the duty of this Court to exercise its power supervisory jurisdiction under Article 227 of the Constitution of India so that the subordinate Courts perform their functions in accordance with the provision of law and no party shall suffer for any mistake committed by the Court. 10. From above, the impugned judgment and order of the learned Assistant District Judge No.l, Cachar, Silchar is set aside. The learned Assistant District Judge is directed to proceed with the case in accordance with the provision of law. For convenience, and in the interest of the parties, it is ordered mat the appellant, if so advised, may file an application for setting aside the Award before the Court of the Assistant District Judge Ne.l, Cachar, Silchar, within a period of 30 (thirty) days from today. And on receipt of such an application the learned Court shall proceed to hear the matter and dispose of the case expeditiously. And on receipt of such an application the learned Court shall proceed to hear the matter and dispose of the case expeditiously. An endeavour should be made to dispose of the application within a period of 1 (one) month from the date of filing of an application for setting aside of the Award. 11. Accordingly, appeal is allowed. Send back the records forthwith.