Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 528 (PNJ)

Shivalik Const. Co. v. Punjab State And Ors.

2000-05-17

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. M/s Shivalik Construction Company (hereinafter called "the company") has filed the present Civil Revision and it has been directed against the order dated 4.9.1998, passed by the Court of Additional District Judge, Rupnagar who allowed the appeal of the State of Punjab and set aside the orders dated 27.7.1995, passed by the Court of Senior Sub Judge, Ropar, who had allowed the objection of the Company under Sections 30/33 of the Indian Arbitration Act and the Award dated 4.3.1993 made by the Arbitrator was set aside. 2. Some facts can be noticed in the following manner : Work was allotted to the Company by the State of Punjab. The dispute arose between the Company and the State and the Director State Transport, Punjab, Chandigarh, was appointed as an Arbitrator who gave the Award on 4.3.1993. An application was filed under Section 14 of the Indian Arbitration Act by the Company seeking the direction to respondent No. 4 to file the Award dated 4.3.93 alongwith all the proceedings. 3. Notice of the application was given to the respondents. Subsequently, the Arbitrator sent the award alongwith the report to the Court. 4. Company filed the objections to the award on 15.2.1994 through its partners Roshan Lal Gupta and Sham Lal Gupta and it was pleaded that objector is a registered firm with the Registrar of Firms, Punjab and it acts through its partner and carries on its business under the name and style of M/s Shivalik Construction Company. The respondent-State invited the tenders for the extension of workshop in Punjab Roadways Depot, Ropar and the work worth Rs. 10.34 lacs was to be got done by the contractor. Under the agreement a condition was imposed to complete the work within the stipulated period of six months from the date of the issuance of the letter dated 12.12.1989. The objector immediately reported to the concerned SDE, and started the work. The dispute arose between the partners in accordance with clause 25-A of the agreement. The matter was referred to the Arbitrator i.e. respondent No. 4. The objector immediately reported to the concerned SDE, and started the work. The dispute arose between the partners in accordance with clause 25-A of the agreement. The matter was referred to the Arbitrator i.e. respondent No. 4. Inspite of the fact that intimation was given to respondent No. 4 to enter upon the reference, he refused to enter upon the reference and on the last date of the hearing the arbitrator directed the Executive Engineer to supply some document to prove the date of handing over the charge by the Executive Engineer, which was very pivotal fact to be decided in this case. According to the objector, the stipulated time expired on 5.3.1993, Both the partner approached the Personal Assistant of the Arbitrator on 5.3.1993 in order to know whether the award has been made or not. The said partners of the firm were told by the Personal Assistant at about 5.15 P.M. on 5.3.1993 that the award has not been made so far and shall be announced at a later stage. The said partners of the objector firm also asked as to whether any document was called for from the Executive Engineer or not. No satisfactory reply was given. The objector filed an application dated 6.3.1993 and requested the arbitrator to supply the photo copy of the charge report alongwith comments, if any, to be produced by the Executive Engineer so that the proper answer may be given by the objector. The Arbitrator was also requested to send the copy of such document. 5. In short the defence taken up by the present petitioner was that the award dated 4.3.1993 is ante dated as upto 5.3.1993 no award was made and announced. The State filed the reply to the objections filed by the objector in which the State denied the allegations and reiterated that the, award has been passed in accordance with law and within limitation. 6. The objector filed a rejoinder and from the pleadings of the parties the learned Court of Senior Sub Judge framed the following issues :- 1. Whether the award was passed by the Arbitrator after the statutory period prescribed for completion of the arbitration proceedings ? OPO 2. Whether the objection petition is barred by time ? OPR 3. Whether the award is liable to be set aside for the reasons mentioned in the objection petition ? OPO 4. Relief. 7. Whether the award was passed by the Arbitrator after the statutory period prescribed for completion of the arbitration proceedings ? OPO 2. Whether the objection petition is barred by time ? OPR 3. Whether the award is liable to be set aside for the reasons mentioned in the objection petition ? OPO 4. Relief. 7. The parties led evidence in support of their case and vide impugned order dated 27.7.1995 the objections were accepted and the award dated 4.3.1993 was set aside with no order as to costs. 8. The State filed the appeal before the Court of Additional District Judge who for the reasons given in para No. 14 onwards of its judgment, allowed the appeal of the State and dismissed the objections and made the award rule of the Court which was in favour of the State. 9. Aggrieved by the order of the first appellate Court, the present revision has been filed by the Company. 10. I have heard Shri P.S. Rana, Advocate, appearing on behalf of the petitioner and Mrs. S.K. Bhatia, DAG, Punjab, appearing on behalf of the respondents and with their assistance have gone through the records of this case. 11. Before I deal with submissions raised by the learned counsel for the petitioner, it will be useful for me to incorporate paras No. 13 to 19 of the judgment of the first appellate Court, which are reproduced as under :- "13. After having come to know the filing of the award and the proceedings in the Court on 23.11.1993, the objections for setting aside or for modification or remittance of the award, were required to be filed by the parties, within 30 days from the date of the filing of the award and the proceedings by the Arbitrator was brought to the notice of the parties by the Court on that date. The 30 days stood completed on 23.12.1993 by excluding the date 23.11.1993, when for the first time the filing of the award and the proceedings was brought to the notice of the parties by the Court. But the objections to the award, as not disputed before me by the learned counsel, were filed by the respondent company, in the Court only on 15.2.1994, much after the expiry of 30 days from the date of knowledge of the filing of the award and proceedings in the Court. 14. But the objections to the award, as not disputed before me by the learned counsel, were filed by the respondent company, in the Court only on 15.2.1994, much after the expiry of 30 days from the date of knowledge of the filing of the award and proceedings in the Court. 14. The objections of the respondent company for setting aside of the award, having been filed after the prescribed period of 30 days, were liable to be dismissed by the trial Court outrightly being time barred. But the trial Judge, for the reasons best known to him, did not look into this aspect of the matter. The trial Judge had decided issue No. 2 which was framed on the plea of the appellants that the objections filed by the respondent company against the award, are time barred, by taking the view that since the award is void and illegal having been announced after the statutory period of four months, the objection could be filed at any time and that the appellants had also not produced any evidence to prove that the objector/respondent Company received copy of the award. But this view of the learned Judge is wholly erroneous and shows lack of knowledge of law on his part. If the learned Judge had time to just go through the provisions of Article 119 of the Limitation Act, referred to above, he would not have taken this view of holding the objection petition of the respondent company, within time. When the filing of the award and the proceedings were brought to the notice of the parties by the Court while passing order dated 23.11.1993, referred to above, the respondent company was duty bound to file the objections within 30 days from the date as required by clause (b) of the Article 119 of the Limitation Act, referred to above. The perusal of the trial Court file shows that the respondent company had been taking date after date for filing objections to the award and finally filed the objections only on 15.2.1994. Under these circumstances, objection petition could be filed by respondent company, at any time and that the appellants have failed to prove that the respondent Company got the copy of the award. 15. Under these circumstances, objection petition could be filed by respondent company, at any time and that the appellants have failed to prove that the respondent Company got the copy of the award. 15. In the light of discussion made above, it must be held that the objections petition filed by the respondent company for setting aside the award is time barred and deserves to be dismissed on this ground alone. The findings of the trial Court under issue No. 2 are reversed. 16. When the very objection of the respondent company against the award are time barred, the learned trial Judge, had no power to set aside the award on the basis of those objections by holding that the award is void, illegal. Even otherwise, the findings recorded by the learned trial Judge, under issue No. 1 for holding that the award is void, illegal, are patently wrong and factually incorrect. No doubt, the respondent company in the objection petition had challenged the validity of the award on the ground that it had been announced and given by the Arbitrator after the extended period but there is not an iota of reliable evidence on the record to substantiate this objection. Undisputedly, when initial period of four months expired the parties by their consent extended the period for giving of the award by the Arbitrator, to one month which was to be completed on 5.3.1993. The bald allegations of the respondent company that award was not announced on 4.3.1993, as made in the objection petition and also in the affidavit by Sham Lal, partner of the respondent company, cannot be attached any credence. The arbitrator in this case was the then State Transport Director Shri R.S. Sandhu. The perusal of the arbitration file submitted by him alongwith the award before the trial Judge shows that he concluded the hearing in the case on 3.2.1993 and on that date he directed the respondent company to file requisite stamp paper for recording the award thereon. That stamp paper was filed by the respondent company on 4.2.1993. The award was announced by him on 4.3.1993. There exists no cogent reason to doubt the correctness of the proceedings recorded by him in the file as there in nothing on the record to suggest if he had any motive or personal interest, for preparing false record. That stamp paper was filed by the respondent company on 4.2.1993. The award was announced by him on 4.3.1993. There exists no cogent reason to doubt the correctness of the proceedings recorded by him in the file as there in nothing on the record to suggest if he had any motive or personal interest, for preparing false record. The file further shows that the copy of the Award was sent to the parties vide letter No. 1536-37 dated 5.3.1993. 17. No doubt, Sham Lal, partner of the respondent Company, has averred that he met the P.A. of the arbitrator (respondent No. 4) on 5.3.1993 and he was told by him that the award had not been announced so far. He has further also stated in his affidavit that, thereafter, an application dated 6.3.1993 was sent to the arbitrator that copy of the charge report alongwith comments, produced by the Xen, has not been received by his firm for giving any comments and that registered letter dated 12.3.1993 was sent to the Arbitrator but excepting his own affidavit, there is no affidavit of any other person to corroborate his version. He has not even disclosed the name of the P.A. of the Arbitrator whom he met and who told him on 5.3.1993 that the award had not been announced. The application dated 6.3.1993 and the notice dated 12.3.1993 which he allegedly sent to the Arbitrator had been apparently prepared by him just with a view to create the evidence about the non-announcement of the award by the arbitrator on 4.3.1993, after having come to know that award had gone against his firm. There was no cause or reason for the arbitrator to ante-date the award, if he had not actually announced the same on 4.3.1993. There was also no occasion for him to forge the letter No. 1536-37 dated 5.3.1993 vide which he sent the copies of the award to the respondent company as well as to the appellants. On behalf of the appellants, the Executive Engineer had given an affidavit controverting the contents of the affidavit of Sham Lal, partner of the respondent company. He in his own affidavit has categorically deposed that the award was announced on 4.3.1993 by the Arbitrator. 18. The learned trial Judge has wrongly and erroneously accepted the version of the respondent company that award was not announced by the Arbitrator on 4.3.1993. He in his own affidavit has categorically deposed that the award was announced on 4.3.1993 by the Arbitrator. 18. The learned trial Judge has wrongly and erroneously accepted the version of the respondent company that award was not announced by the Arbitrator on 4.3.1993. From the resume of the facts and circumstances, referred to above, it can be safely concluded that the award was announced by the Arbitrator on 4.3.1993 before the expiry of extended period which was upto 5.3.1993. Therefore, the award rendered by him cannot be in any manner held to be void, illegal. The findings of the trial Court under issues No. 1 and 3 are, therefore, reversed. 19. Resultantly, the appeal of the appellants is accepted with costs. The impugned judgment of the trial Court, is set aside. The objections of the respondent Company against the award, are ordered to be dismissed. The award of the arbitrator dated 4.3.1993 is ordered to be made Rule of the Court. Decree sheet in terms of the award be prepared." 12. The reading of the above would show that the objections of the present petitioner have been dismissed mainly on the ground that objections were filed beyond limitation and even on merit, there is no cogent proof that the arbitrator has misconducted himself or the proceedings or that he has ante dated the award by showing the date that it was delivered on 4.3.1993. 13. The learned counsel for the petitioner submitted that the reasons adopted by the first appellate Court in holding that the objections were time barred are erroneous. Though the learned counsel appearing on behalf of the respondent after relying upon Article 119 of the Limitation Act, submitted that the objections could be filed within 30 days from the date of the service of the notice of the award. She submitted that the petitioner company itself filed an application under Section 14 of the Indian Arbitration Act. It had the knowledge of the award given by the Arbitrator respondent No. 4 and in these circumstances, objections which were filed on 15.2.1994, were hopelessly barred by limitation. 14. I do not concur with the contention raised by the learned counsel for the respondents. It is true that the petitioner had the knowledge of the filing of the award and the award was filed in the Court on 23.11.1993. 14. I do not concur with the contention raised by the learned counsel for the respondents. It is true that the petitioner had the knowledge of the filing of the award and the award was filed in the Court on 23.11.1993. The Court called upon the parties to file the objections and the Court had been granting time to the parties to file the objections to the award up to 7.3.1994. 15. In these circumstances, the material point for determination is that when the Court has given the option to the parties to file the objections to the award, whether the party can take the benefit of the concession given by the Court or not beyond 30 days? 16. The learned counsel appearing on behalf of the respondents submitted that in this case the provisions of Section 5 of the Limitation Act are not applicable because of the statutory bar under Article 119 of the Indian Limitation Act and in these circumstances, even if the Court has granted the concession, it will not supersede the provision of Article 119 of the Limitation Act and any objection filed after 30 days has to be overlooked and rejected straightaway being beyond limitation. 17. This contention is not acceptable to the Court. 17. This contention is not acceptable to the Court. This point came for consideration earlier for judicial interpretation before Orissa High Court in a case reported as Ganga Ram Chhapolia v. Chief Engineer AIR 1983 Orissa 262 and it was observed as follows:- "Where the petitioner, a party to the Arbitration agreement, who had notice of the filing of the award in Court on 14.4.1996 which was the date on which the title suit instituted on the basis of the award was posted, was served with a notice on 15.4.1976, the date on which the title suit was adjourned, directing the parties to file their objections within a month from the notice and on the said date the Court posted the case on 29.4.1977 and on that day as no objections were filed by any of the parties the Court further adjourned it to 26.6.1977 for filing objections and the petitioner filed his objections as to the award on that date his application could not be said to be beyond time because by granting time to file objections, the Court had impliedly extended the time even without a formal application under Section 5 of the Limitation Act, for condonation of the delay." 18. The Honble Judge followed the judgment of Orissa (High Court ) Union of India v. Builders Union AIR 1981 Orissa 188. Learned counsel for the respondent wanted to distinuish this authority by stating that the adjournment granted by the trial Court was without any basis and the trial Court never applied his mind with regard to Article 119 of the Limitation Act. The argument of the learned counsel for the respondents is not acceptable to this Court. The Court had extended the time and had given date for the benefit of the parties to file the objections, in the cited case also there was no formal request on behalf of the objector for extension of the time and the case was adjourned by the Court from time to time calling upon the parties to file the objections. In such a situation, though the objections were filed by the Company on 15.2.1994 but these cannot be held to be beyond limitation. 19. In such a situation, though the objections were filed by the Company on 15.2.1994 but these cannot be held to be beyond limitation. 19. The learned counsel for the petitioner Shri Rana then invited my attention to a recent judgment of Kerala High Court delivered by the Honble D.B. Reported as Union of India v. Vidyachandran, 2000(I) RCR (Civil) 728 in which a similar proposition of law was answered and it was observed that the Court has the jurisdiction to condone the delay in filing the objection beyond a period of 30 days under Section 5 of the Limitation act. Even otherwise, this Court is of the opinion that with the filing of objections late, where the opportunity was given to the State to reply those objections, no serious prejudice has been caused to the State. In these circumstances, the contention of the learned counsel appearing on behalf of the petitioner is hereby accepted and the reasons advanced by the first appellate Court for rejecting the objections under Section 30 read with Section 33 of the Arbitration Act, being time barred, are reversed. 20. The difficulty still arises for the petitioner. Even with the setting aside of the reasons of the first appellate Court regarding limitation, the petitioner has not been able to improve his lot on merit. 21. The learned counsel Shri Rana, appearing on behalf of the petitioner submitted that the Arbitrator has misconducted himself or with the proceedings when he has not called upon the opposite party to file the charge report inspite of the specific request made by the objector to the arbitrator that after calling the charge report an opportunity should be given to the objector-Company to file its objections. He further submitted that this charge report was very material document which has been totally ignored by the arbitrator before giving the award in favour of the respondent State and in this manner the award is otherwise invalid for the purpose of Section 30 of the Indian Evidence Act. 22. The submission raised by the learned counsel for the petitioner is not acceptable to this Court. We all know that the Arbitrator is a master of law and fact. Rather he is a master in chief. 22. The submission raised by the learned counsel for the petitioner is not acceptable to this Court. We all know that the Arbitrator is a master of law and fact. Rather he is a master in chief. This aspect of the case has been rightly discussed by the first appellate Court in para No. 17 of the impugned order and I do not want to differ with the same. 23. In this view of the matter by reversing the finding of the first appellate Court concerning limitation, I am not in a position to set aside the judgment of the first appellate Court. Resultantly, the present revision is without any merit and the same is hereby dismissed.