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2001 DIGILAW 309 (ALL)

UNION OF INDIA v. IVTH A. C. M. M. , KANPUR NAGAR

2001-03-31

O.P.GARG

body2001
O. P. GARG, J. ( 1 ) THE Union of India through the Department of Supply. Directorate of Supplies, Disposals placed two orders dated 24th April and 23rd August, 1990 with M/s. Sukhdev Steel Cutters and welders, 83/23b (43) Building Material Market, Juhi Khurd, Kanpur-respondent No. 2 in the writ petition (for short called "the supplier) respectively for the supply of 273 and 31 Iron Safes fire Resistant Special Iron Safe Record Room. The agreement executed between the parties is said to contain an arbitration clause. After the supplies were made, the Union of India is alleged to have paid the entire amount to the manufacturer except a sum of Rs. 79,257 withheld for rectification of defects. There arose a dispute with regard to the payment. The supplier filed a suit under Section 20 of the Arbitration Act. 1940 (hereinafter referred to as "the Act) which was registered as Original Suit No. 42 of 1996 for resolution of the dispute by arbitration. The suit was decreed and Sri Pradeep Kutnar Srivastava. an Advocate was appointed as arbitrator by order dated 17. 12. 1996. He made an award on 27. 2. 1999. a copy of which is Annexure-3 to the writ petition. The claim of the supplier for compensation/damages to the extent of Rupees twelve lacs Fifty Thousands with Interest at 18 per cent per annum was allowed. The award was filed in a sealed over under Section 14 of the Act before trial court, i. e. . Additional Civil judge/ivth A. C. M. M. . Kanpur Nagar where upon a notice was issued under Section 14 (2) of the act on 8. 4. 1999 and was served on the Union of India at its Calcutta office on 12. 4. 1999. No objection under Sections 30 and 33 of the Act was filed on behalf of the Union of India within the specified period of 30 days of the service of notice of the making of the award. After receiving a certified copy of the award on 6. 9. 1999. the Union of India filed objection against it along with an application for condonation of delay under Section 5 of the Limitation Act on 27. 10. 1999. The application for condonation of delay and the objection were rejected by trial court by order dated 19. 2. 2000 (Misc. Case No. 6/74-Annexure-8 to the petition ). 9. 1999. the Union of India filed objection against it along with an application for condonation of delay under Section 5 of the Limitation Act on 27. 10. 1999. The application for condonation of delay and the objection were rejected by trial court by order dated 19. 2. 2000 (Misc. Case No. 6/74-Annexure-8 to the petition ). It is In these circumstances that the Union of India approached this court by filing Civil Misc. Writ No. 20956 of 2000 in which the following interim order was passed by this Court at the initial stage : ". . . . . In the meantime, operation of the award shall remain stayed provided the petitioners deposit the entire amount under the award after calculating the amount of interest upto the period 21st march, 2000. This amount shall, be deposited by the Union of India by 30. 6. 2000 positively with respondent No. 1. In case the petitioners fail to deposit the amount aforesaid, this interim order shall stand automatically discharged and the respondent No. I shall be entitled to proceed with the case and pass appropriate order. " Pursuant to the said order. Union of India has deposited a total sum of Rs. 15,97. 908 before the trial court. There have been certain objections with-regard to the deposits and the supplier maintained that since the aforesaid order passed by this Court in the writ petition has not been complied with, further proceedings for making the award rule of the court under Section 17 of the Act be taken. The trial court rejected the application of the supplier on 29. 7. 2000. This order has given rise to the revision No. 37) of 2000 filed by the supplier. ( 2 ) COUNTER and rejoinder-affidavits have, been filed both in the writ petition as well as in the revision application. The revision petition came up for admission before Honble V. M. Satiai. J. who by his order dated 20. 9. 2000 observed that the revision and the writ petition, aforesaid, may be decided together so that the controversy may come to an end. It is in this manner that the present two cases--writ petition and Civil Revision-were connected and have been received by nomination made by Honble the Chief Justice. Since common questions of fact and law are involved in both these cases, they are being decided by this common judgment. It is in this manner that the present two cases--writ petition and Civil Revision-were connected and have been received by nomination made by Honble the Chief Justice. Since common questions of fact and law are involved in both these cases, they are being decided by this common judgment. ( 3 ) HEARD Sri Shishir Kumar. learned counsel for the petitioner-Union of India, and Smt. Ira sharma assisted by Sri B. K. Sharma (in person) for the supplier at considerable length. ( 4 ) TO begin with, it would be worthwhile to make a reference to a preliminary objection taken by smt. Ira Sharma on behalf of the supplier that the writ petition filed by the Union of India is not maintainable firstly for the reason that the petitioner had alternative remedy under the provisions of the Act which provides a complete apparatus for redressal of the grievances and in any case, the proceedings which resulted from the arbitration reference made by the Court in a suit under section 20 of the Act are not amenable to the writ jurisdiction under Article 226 of the constitution of India. It was also urged that the extraordinary remedy is not available to enforce contractual right. A reference was made to the decision of Smt. Rukmanibai Gupta v. Collector, jabalpur and others, (1980) 4 SCC 556 , in which it was observed that in the event of dispute, remedy lies under the Act only and writ jurisdiction under Article 226 is barred. Moreover, writ jurisdiction cannot be invoked to avoid contractual obligations voluntarily incurred and Bal kishan Gulzari Lal v. Pannalal and others. AIR 1973 Del 108 . in which it was held that a writ of mandamus cannot issue as the arbitrator appointed under the Act is not amenable to High Courts jurisdiction. Placing reliance on Jai Singh v. Union of India and others, AIR 1977 SC 893 , it was urged that this Court will not grant relief when the case Involves determination of disputed questions of fact or when the petitioner has an alternative remedy. Smt. Ira Sharma went on to emphasise that this Court has been hoodwinked and misled to entertain the writ petition and pass an interim order dated 22nd May. 2000, inasmuch as, if the correct facts were brought before the court without misrepresentation and playing the fraud, the writ petition could not have been entertained. Smt. Ira Sharma went on to emphasise that this Court has been hoodwinked and misled to entertain the writ petition and pass an interim order dated 22nd May. 2000, inasmuch as, if the correct facts were brought before the court without misrepresentation and playing the fraud, the writ petition could not have been entertained. She placed reliance on the decision of Welcome Hotel and others v. State of Andhra pradesh and others, AIR 1983 SC 1015 and Daulat Singh and others v. The Deputy commissioner Karnal and others. AIR 1972 Pandh 23, to fortify the submission that where a writ petitioner got his petition admitted by hoodwinking the Court by making a deliberate false statement or by suppressing the facts in the petition, such conduct renders him under-serving of any assistance which the Court may have otherwise thought proper to extend him in its writ jurisdiction. All these submissions have been repelled by Sri Shishir Kumar appearing on behalf of the Union of India. It was pointed out that the question involved in the present writ petition pertains to the interpretation of the expression service of notice as occurring in Section 14 (2) of the Act, as well as the applicability of the provisions of Section 5 of the Limitation Act. ( 5 ) I have given thoughtful consideration to the matter. The question of maintainability of the writ petition on the ground of alternative remedy/exhaustion of remedy has come to be considered in the celebrated decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, mumbai and others, (1998) 8 SCC 1 . Law on the point has been crystalised in the following paragraphs of the Report, which are being quoted, in extenso : "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose. 15. Under Article 226 of the Constitution, the High Court, having regard in the facts of the case, has a discretion to entertain or not to entertain a writ petition. 15. Under Article 226 of the Constitution, the High Court, having regard in the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has Imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its Jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental Rights or where there has been a violation of the principle of natural Justice or where the order or proceedings are wholly without Jurisdiction or the vires of the Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 16. Rashid Ahmed v. Municipal Board Kairana, AIR 1950 SC 566, laid down that existence of an adequate legal remedy, was a factor to be taken into consideration in the matter of granting writs. This was followed by another case, namely. K. S. Rashid and Son v. Income Tax investigation Commission, AIR 1954 SC 207 : (1954) 25 ITR 167. which reiterated the above proposition and held that where alternative remedy existed, it would be sound exercise of discretion to refuse to interfere in a petition under Article 226. The proposition was, however, qualified by the significant words "unless there are good grounds therefor" which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U. P. v. Mohd. Nooh, AIR 1958 SC 86 : 1958 SCR 595 , as under : "but this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. " 18. " 18. This proposition was considered by a Constitution Bench of this Court in A. V. Venkateswaran Collector of Customs v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506 : (1962) 1 SCR 753 , and was affirmed and followed in the following words : "the passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which conies up before the Court. " 19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO Companies distt. , AIR 1961 SC 372 : (1961)41 ITR 191 laid down : "though the writ of prohibition or certiorari will not issue against an executive authority, the high Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting, without jurisdiction under Section 34. Income-tax Act. " 20. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting, without jurisdiction under Section 34. Income-tax Act. " 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in the alternative statutory remedies, is not affected specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. " ( 6 ) THE bar of alternative remedy, which does not flow from any constitutional provisions is a self-imposed restriction. Existence of the alternative remedy has been consistently held by the apex Court not to operate as a bar in the following three contingencies, namely, (i) where the writ petition has been filed for the enforcement of any of the Fundamental Rights, or. (ii) where there has been a violation of the principle of natural justice, or. (iii) where the order and proceedings are wholly without jurisdiction or the vires of the Act is challenged. Where there is a pure question of law involved for determination in the writ petition, this Court would not throw it out merely on the ground of alternative remedy. This aspect of the matter was clarified by the apex Court in Bal Krishna Agarwal (Dr.) v. State of U. P. , (1995) 1 SCC 614 , in which it was observed that dismissal of writ petition by High Court on ground of non-exhaustion of alternative remedy was not proper where the petition was kept pending for a number of years and the point involved was a pure question of law which, in any case, would have come before the high Court. In another decision in K. Venkatachalam v. A. Swamickan. (1999) 4 SCC 526 , the point came to be considered in the background of the provisions of the Representation of People act and Article 329 (b) of the Constitution of India and it was urged that in election matters, a writ petition is not maintainable. In another decision in K. Venkatachalam v. A. Swamickan. (1999) 4 SCC 526 , the point came to be considered in the background of the provisions of the Representation of People act and Article 329 (b) of the Constitution of India and it was urged that in election matters, a writ petition is not maintainable. In that case, the appellant before the Apex Court tacked the basic qualifications under clause (c) of. Article 173 of the Constitution of India read with Section 5 of the Representation of People Act and consequently, he was disqualified for being a Member of Legislative Assembly of Tamil Nadu. It was observed that Article 226 is couched in the widest possible terms and unless there is clear bar of the High Court, its powers under Article 226 can be exercised when there is any act which is against any provision of law or violation of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. It was further observed that the High Court rightly exercised its Jurisdiction in entertaining the writ petition and declaring that the appellant (of that case) was not entitled to sit in Tamil Nadu Legislative Assembly with the consequent restraint order on him from functioning as an M. L. A. ( 7 ) IT is true that normally a writ petition does not lie to enforce a contractual right but this proposition of taw is not sacrosanct or immutable. In certain extraordinary circumstances, a writ petition even in the matters of enforcement of contractual rights may be maintained. This aspect of the matter was dealt with by the Apex Court In State of Himachal Pradesh v. Raja Mahendra pal (1999) 4 SCC 43 . The Honble Supreme Court observed that the powers conferred upon the high Court under Article 226 of the Constitution of India are discretionary in nature which can be invoked for the enforcement of any Fundamental Right or legal right but not for mere contractual rights arising out of agreement, particularly, in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the parties to avail of the same instead of invoking extraordinary writ jurisdiction of the Court. This does not, however, debar the Court from granting the appropriate relief to a citizen under peculiar and special facts, notwithstanding the existence of alternative efficacious remedy. The constitutional court should insist upon the parties to avail of the same instead of invoking extraordinary writ jurisdiction of the Court. This does not, however, debar the Court from granting the appropriate relief to a citizen under peculiar and special facts, notwithstanding the existence of alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High court while invoking the jurisdiction under the said Article. In that case, the order of the High court was criticised on the ground that it had no jurisdiction under Article 226 of the constitution to grant State largess to an ex ruler of an erstwhile Princely State whose claim was based on contractual right and whose assumption of being equal in status to the State government was erroneous. The High Court did not also notice any special circumstance which could be held to have persuaded it to deviate from the settled position of law regarding exercise of writ jurisdiction under Article 226. ( 8 ) IN the instant case, a number of legal questions have been raised, for example, meaning of the expression service of notice as occurring in Section 14 (2) of the Act and the applicability of the provisions of Section 5 of the Limitation Act to arbitration proceedings to enlarge the time on sufficiently explained ground. The legal jurisdiction of the arbitrator to embark upon an enquiry and to order payment of substantial amount as compensation/damages has also been the subject-matter of challenge before this Court in writ jurisdiction. ( 9 ) IN support of the plea that the writ petition should be thrown out on the ground of misrepresentation and fraud played on behalf of the Union of India, Smt. Ira Sharma placed reliance on the decisions of the Apex Court in Welcome Hotel and others v. State of Andhra pradesh and others, AIR 1983 SC 1915 and S. P. Chengalvamva Naidu v. Jagannath, AIR 1994 sc 853 . The plea is otiose in view of the fact that this Court had entertained the writ petition after hearing learned counsel for the petitioner and passed an elaborate order at the initial stage on 22. 5. The plea is otiose in view of the fact that this Court had entertained the writ petition after hearing learned counsel for the petitioner and passed an elaborate order at the initial stage on 22. 5. 2000, The order, In question, in the writ petition passed at the time of its entertainment cannot be said to be the product of any misrepresentation, hoodwinking or fraud for and on behalf of the Union of India. The following facts would reveal that as a matter of fact, it was a fit case in which Intervention of this Court by invoking the extraordinary jurisdiction was called for with a view to prevent the miscarriage of justice and put the law on rails. ( 10 ) ADMITTEDLY, the Union of India had placed two separate orders for the supply of Safe Orderly room. The first order is dated 24. 4. 1990 whereby 273 number of Safes Orderly Rooms bearing category number KE/4336 for the value of Rs. 15,16,000 were required to be supplied by the supplier. The general conditions of the contract as per Form No. DGSandd-68 (revised) and as amended to date including clause 24 were to apply to the contract. The other order for the supply giving rise to the contract is dated 23. 8. 1990 pursuant to which 31 numbers of Safe iron-1500x750x670 mm. (single door type) conforming to I. S. 350-1979 Class a as amended up-to-date category No. 7110-00028 for the value of Rs. 8. 28,940 were to be supplied by the supplier. This contract was governed by the instructions contained in DGSandd pamphlet 36-DGSandd-29 and general conditions of the contract as contained in Form DGSandd 68 (revised)all as amended till date excluding clause 24 thereof. Clause 24 refers to arbitration clause. Supplies were accordingly made but there arose some dispute with regard to the rectification of defects in some Iron Safes. The case of the Union of India is that out of the 31 Iron Safes covered by contract No. CP-5/243 dated 23. 8. 1990. 9 were defective and consequently withholding of a sum of Rs. 79,257 became necessary, though the entire balance amount had been paid to the supplier (Rs. 8,28,940)-79,257) Smt. Ira Sharma pointed out that the dispute was with regard to the payment of 273 Safe Orderly Rooms covered by contract No. 101/630/k-4/918 C. O. A. D. dated 24. 4. 8. 1990. 9 were defective and consequently withholding of a sum of Rs. 79,257 became necessary, though the entire balance amount had been paid to the supplier (Rs. 8,28,940)-79,257) Smt. Ira Sharma pointed out that the dispute was with regard to the payment of 273 Safe Orderly Rooms covered by contract No. 101/630/k-4/918 C. O. A. D. dated 24. 4. 1990 under which a sum of Rs. 15. 16,000 was to be paid to the manufacturer and since the Union of India was not prepared to invoke the arbitration clause, an application under Section 20 of the Act was moved giving rise to Original Suit No. 42 of 1996. The Union of India put in appearance and at some stage contested the petition but subsequently it decamped with the result, an ex parte order was passed by the Court under section 20 of the Act on 17. 12. 1996 appointing Sri Pradeep Kumar Srivastava, Advocate as the sole arbitrator. Even before the arbitrator, the Union of India had put in appearance. After contest, the award was made by the arbitrator on 27. 2. 1999. The manufacturer had preferred the following claims : (i) Damages amounting to Rs. 25 lacs on account of financial loss of money and damage of S. S. I. unit on average profit caused by breach of conditions of the contract having arisen from withholding of Rs. 79. 257. (ii) A sum of Rs. 25 lacs for physical and mental agony, inconvenience and hardship causing heart Double to the proprietor of the manufacturer, loss of career and goodwill of manufacturer, and (iii) Interest at the rate of 22. 75 per cent w. e. f. 1. 7. 1992 till the amount of damages claimed under clauses (i) and (ii) above was paid. The arbitrator has recorded the finding that there has been breach of the contract on the part of the Union of India in withholding the amount of Rs. 79,257 from the supply bill No. 03/92-93 dated 1. 7. 1992. The arbitrator awarded a sum of Rs. 12. 5 lacs as compensation/ damages (being half of the amount claimed under clause (i) above) with interest @ 18% per annum and rejected the claim in respect of clause No. (ii) above. The award was filed in the Court on 4. 3. 7. 1992. The arbitrator awarded a sum of Rs. 12. 5 lacs as compensation/ damages (being half of the amount claimed under clause (i) above) with interest @ 18% per annum and rejected the claim in respect of clause No. (ii) above. The award was filed in the Court on 4. 3. 1999 in a sealed cover as per requirement of Rule 8 of Chapter XXXI Arbitration Rules contained in the allahabad High Court Rules of 1952 and notice issued by Court on 8. 4. 1999 was served on union of India (at its Calcutta Office) admittedly on 12. 4. 1999. On behalf of the Union of India, a number of applications were moved for inspection of the award, issue of certified copy of it and for time to file objection against the award. The certified copy of the award was obtained on behalf of the Union of India on 6. 9. 1999 and thereafter, objections were filed under Sections 30/33 of the Act on 27. 10. 1999 with an application under Section 5 of the Limitation Act for condonation of delay. The objections were not decided on merits by the Court below as they were preferred beyond 30 days period prescribed for the purpose in Article 119 (b) of the limitation Act, which runs as follows :"119 (b) For setting aside an award or getting the award remitted for reconsideration 30 days from the date of service of the notice of the filing of the award. " ( 11 ) SMT. Ira Sharma urged that if there was no response from the Union of India, or after making the response, it has deliberately withdrawn to contest the suit under Section 20 of the Act or withdrew from proceedings before the arbitrator, it cannot be heard to say that the award was without Jurisdiction, illegal or was the outcome of misconduct on the part of the arbitrator. It was maintained that the trial court was justified in rejecting the objections as being barred by time. Reference was made to the decisions in G. Ramchandra Reddy and Co. It was maintained that the trial court was justified in rejecting the objections as being barred by time. Reference was made to the decisions in G. Ramchandra Reddy and Co. v. Chief Engineer madras Zone, Military Engineering Service, AIR 1994 SC 238 ; India Lease Development Ltd. v. Shrt Satish Kumar Singh, 1996 (2) Arb LR 469 ; M/s. Goodwill India Ltd. v. M/s. Elizabeth thomas and another, 1996 (2) Arb LR 378 : Union of India and others v. M/s. Allied construction Company, (1980) 2 SCC 215 : Prasun Roy v. Calcutta Metropolitan Development authority and another, (1987) 4 SCC 217 and on the authority of C. Srinivasan Rao and etc. v. R. Ramankutty and others, AIR 1999 Mad 21. She further urged that it is permissible to the arbitrator to decide the liability to pay particular amount or damages and, therefore, the Court cannot interfere with the decision taken by the arbitrator. ( 12 ) SRI Shishir Kumar urged that there was no service of notice in law unless the copy of the award accompanied the notice with all necessary documents and since the contents of the award were not known to the Union of the India, it could not effectively file an objection. A reference was made to the provisions of Order V, Rule 2 of the Code of Civil Procedure which reads as follows : "2. Copy or statement annexed to summons--Every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. The words or, if so permitted, by a concise statement have been omitted by Allahabad amendment. The above provision came to be interpreted by this Court in Ravindra Kumar chopra v. IIIrd Additional District Judge Mathura, 1984 (1) 387, in the context of the determination of the first date of hearing after service of the summons. An earlier Division bench decision of this Court in the case of Safiqur Rahman Khan v. IInd Additional District judge, Rainpur and others. 1982 (1) ARC 729 wherein it was held that in a case where summons had been served but was not accompanied with the copy of the plaint, the date fixed in the summons cannot be treated as the first date of hearing for the purpose of Section 20 (4) of the U. P. Act No, XIII of 1972 was relied upon. The same point came to be considered by the Bombay high Court in Shevaram v. Indian Oil Corporation. AIR 1969 Bom 117 . It was held that the summons cannot be treated to have been served on the defendants insofar as it was admittedly not accompanied by a copy of the plaint as required under Order V, Rule 2 as framed under section 122 of the Code of Civil Procedure. On the strength of the above decisions, Sri Shishir kumar urged that since the award was kept in a sealed cover and it could not be opened as the arbitrator had himself moved an application that till his fee is paid, it should not be unsealed, there was no legal service. This submission on behalf of the Union of India is to be dealt with in the light of the provisions of Sections 14 (1), 14 (2) and 17 of the Act, which read as follows : "14 (1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration of the award. " "14 (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 the award, cause the award or a signed 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 notice to the parties of the filing of the award. "17. Judgement in terms of award. "17. Judgement in terms of award. Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of. or not otherwise in accordance with the award. " the period of limitation for filing the objections seeking the setting aside of arbitration award undoubtedly commences from the date of service of notice issued by the Court upon the parties regarding filing of the award under Section 14 (2) of the Act. It has been held in Secretary to government of Karnataka and another v. Harishbabu. JT 1996 (6) SC 489. that though the notice contemplated under Section 14 (2) be oral also, but what is necessary is that a notice, communication or information to the effect that an award has been filed in the Court must be given by the Court to the parties concerned. Notice to the pleaders of the parties, who are representing the parties before the Court would, of course, be sufficient compliance with the requirement of sub-section (2) of Section 14 of the Act. It was held that a notice by the arbitrator under sub-section (1) of Section 14 of the Act is not a substitute for the notice which the Court is enjoined upon to issue under sub-section (2) of Section 14 of the Act. To the same effect is the decision in Deo Narain Choudhary v. Sri Narain Choudhary. J. T. 2000 (Suppl) (2) SC 260, In which it was ruled that the notice must be some act of the Court. In that case, the award made on 21. 1. 1996 was filed in the Court on 14. 5. 1996 after notice to the parties by the arbitrator. One of the parties filed a caveat on 11. 6. 1996. The Court sent the notice on 16. 7. 1996 which was received by the Caveator on 25. 7. 1996. The objections filed on 21. 8. 1. 1996 was filed in the Court on 14. 5. 1996 after notice to the parties by the arbitrator. One of the parties filed a caveat on 11. 6. 1996. The Court sent the notice on 16. 7. 1996 which was received by the Caveator on 25. 7. 1996. The objections filed on 21. 8. 1996 were held to be not beyond time as the date of service of the notice sent by the Court was found to be relevant for the purpose and not the date on which information was given by the arbitrator. In an earlier case in union of India v. Union Builders, AIR 1985 Cal 335, It was held that the limitation to file objection shall start to run from the date on which the notice sent by the Court is served on the parties. It is. therefore, well established position of law that the issue of notice by the Court is sine qua non to commence the period of limitation of 30 days for filing objection. ( 13 ) THE objection contemplated under Section 30 a reference of which has been made in Section 17 of the Act is supposed to be against the validity or otherwise of the award filed by the arbitrator or filed at the instance of cither of the parties. An objection against the award cannot effectively be made unless the contents of the award itself are known to the objector. If the notice/summons is not accompanied with the award, it is well-nigh impossible to the notice to file an effective objection. To require a party to file objection within 30 days from the date of the service of the notice without disclosing him the contents of the award would be a futile exercise and cannot be said to be sufficient compliance of provisions of Section 14 (2) of the Act. A notice to be served on the party has to be valid one and for a valid notice, it is necessary that it should accompany with the copy of the Award. In the instant case, the award was admittedly kept in a sealed cover and was not opened till the date 12. 4. 1999 on which the notice was served. The Union of India was not aware of the contents of the award and the circumstances in which damages were awarded against it. In the instant case, the award was admittedly kept in a sealed cover and was not opened till the date 12. 4. 1999 on which the notice was served. The Union of India was not aware of the contents of the award and the circumstances in which damages were awarded against it. Though the service of the notice on the Union of India was there on 12. 4. 1999, it was inchoate and incomplete. service of notice as provided under Article 119 (b) of the Limitation Act and as contemplated under Section 14 (2) would be complete when the contents of the award were made known to the Union of India. ( 14 ) IT is an indubitable fact that the certified copy of the award was made available to the Union of India on 6. 9. 1999. i. e. . after about six months of the filing of the award and about five months of the service of the notice. The Union of India could file the effective objections against the award only after 6. 9. 1999 on which date the certified copy of the award was made available to it. It did not have any occasion or opportunity to have its say for want of the contents of the award. Since the notice dated 8. 4. 1999 issued by the Court under Section 14 (2) of the Act and served on the Union of India on 12. 4. 1999 was not accompanied with a copy of the award, there was no effective service of notice and for purposes of reckoning and computing the period of limitation of 30 days for filing objection, it should be 6. 9. 1999 which was the date on which the contents of the award came to the knowledge of the Union of India. The objection against the award was filed on 27. 10. 1999. There was thus a delay of 21 days in filing the objection reckoned from the date of effective service, i. e. , 6. 9. 1999. The objection was filed by the Union of India along with an application under Section 5 of the Limitation Act. The objection against the award was filed on 27. 10. 1999. There was thus a delay of 21 days in filing the objection reckoned from the date of effective service, i. e. , 6. 9. 1999. The objection was filed by the Union of India along with an application under Section 5 of the Limitation Act. An objection was raised on behalf of the manufacturer that the enlargement of the period of Limitation In filing the objection was impermissible in view of the decision of the Apex Court in Madan Lal v. Sundar Lal and another, 1967 (3) SCR 147, in which It was observed ; ". . . . . . It may be conceded that there is no special form prescribed for making such an application and in an appropriate case, an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation, it cannot be treated as an application to set aside the award for if it is so treated, it will be barred by limitation. " Besides the aforesaid decision, there are series of other cases in which earlier the view taken was that the period of limitation of 30 days as prescribed under Article 119 (b) of the Limitation act is not expandable and if no objection is filed within a period of 30 days, the Court will proceed under Section 17 of the Act to pronounce judgment according to award and upon the judgment so pronounced, the decree shall follow. Smt. Ira Sharnia made reference to the two decisions of the Apex Court in Nilkantha S. Ningashetti v. Kashinath Somanna Ningashethi and others. AIR 1962 SC 666 and Indian Ravon Corporation Ltd. v. Raunaq and Co. Printer Ltd. . AIR 3988 SC 2054. as well as the decision of Himachal Pradesh High Court in Union of India v. M/s. J. M. Builders and Engineers. AIR 1999 HP 52 . The law that 30 days period is not capable of enlargement in any circumstance stands varied in view of change in law and the various decisions of the Apex Court. Only recently, there have been a number of decisions on the point. In Bharat Coking Coal Ltd. v. L. K. Ahuja and Company. AIR 1999 HP 52 . The law that 30 days period is not capable of enlargement in any circumstance stands varied in view of change in law and the various decisions of the Apex Court. Only recently, there have been a number of decisions on the point. In Bharat Coking Coal Ltd. v. L. K. Ahuja and Company. JT 2001 (3) SC 294, the scope of section 5 and Article 119 (b) of the Schedule to the Limitation Act came to be considered. In that case. the award was filed in a sealed cover and presented to the Court. It was observed that :". . . . . . . . . . . even an objection setting out the grounds specified in Section 30 of the Arbitration Act would amount to an application as contemplated under Article 119 of the Schedule to the limitation Act and. therefore, such objection will have to be filed within the period of limitation. Courts have taken the view that inasmuch as agreement of reference to arbitration is an instrument of solemn character, which is binding on the parties, and so is the Award, if, therefore, a party desires to avoid the effect either of the agreement or the Award, he must strictly comply with the provisions of law and an objection to the Award must be filed within the lime which cannot be extended. In certain circumstances. Courts have taken the view that by granting time to file objection the Court had impliedly extended the time even without a formal application under Section 5 of the Limitation Act. An application for condonation of delay is permissible to file objections under Section 30 of the Arbitration Act by resorting to Section 5 of the Limitation Act. Section 5 of the Limitation Act. 1963 provides that any application, other than those contemplated under Order XXI C. P. C. could be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. It is clear that Section 5 of the Limitation Act is applicable to all applications other than those under Order XXI. C. P. C. Hence scheme of an enactment cannot be availed of to defeat such a right conferred under the statute of limitation in clear terms. It is clear that Section 5 of the Limitation Act is applicable to all applications other than those under Order XXI. C. P. C. Hence scheme of an enactment cannot be availed of to defeat such a right conferred under the statute of limitation in clear terms. " It was further observed that the object of filing the objections is to question the validity of the award on the grounds mentioned in Section 30 of the Act. If such a course is not possible for want of copy in respect of award, certainly the circumstances as arising in that case should be taken note of. In the case before the Apex Court, since the award was filed in a sealed cover, parties were not in a position to file objections unless the award is made available and the delay due to such procedure should be taken to be sufficient cause for the delay in filing the application/ objection. In another case Essar Construction v. N. P. Rama Krishna Reddy, 2000 (4)Supreme Today 266. it washeld that an application to set aside the award, which is rejected on the ground that it is delayed and no sufficient cause has been made out under Section 5 of the limitation Act would be an appealable order. This decision implies applicability of Section 5 of the Limitation Act. It further goes to lay down that even after a decree is passed under Section 17 of the Act, an application under Section 30 can be entertained provided sufficient cause is established. It was made clear that Madan Lals case (supra) was decided in the context of Indian limitation Act, 1908 when the provisions of Section 5 were inapplicable to applications under section 30 of the Act. The period prescribed under Section 158 of the 1908 Act for challenging the award was absolute. In para 32 of the report it has been laid down that ;". . . . . . . . . . Section 5 of the Limitation Act, 1963 is now applicable to all applications under the arbitration Act. Provided that the delay is sufficiently explained there is no such compulsion on the Court to reject the application filed beyond the prescribed period of limitation nor is there any question of the prescribed period of limitation being negatived, by entertaining an application under Section 30 beyond the period of limitation. Provided that the delay is sufficiently explained there is no such compulsion on the Court to reject the application filed beyond the prescribed period of limitation nor is there any question of the prescribed period of limitation being negatived, by entertaining an application under Section 30 beyond the period of limitation. " In Union of India v. M/s. Hanuman Prasad and Brothers, JT 2000 (4) SC 330, the view taken by the Courts below that the Limitation Act is not applicable to the arbitration proceeding was disapproved by the Apex Court and the delay of 82 days in filing the objections under Section 30 of the Act was condoned. It was held that Section 5 of the Limitation Act applies to the arbitration proceedings also. In view of the above decisions, it is well settled proposition of law that delay in filing the objections under Section 30 of the Act may be condoned by invoking the provisions of Section 5 of the Limitation Act if explained for sufficient reasons. However, it has to be remembered that law of Limitation has to be applied with all its vigour when the statute so prescribes. Courts cannot extend the period of limitation on equitable grounds. Lacchiman Das arora v. Ganeshilal. (1999) 9 SCC 532. ( 15 ) SRI Shishir Kumar, learned counsel for the Union of India pointed out that as a matter of fact there was no delay in filing the objections as they were filed on 27. 10. 1999 after inspecting the record on 21. 10. 1999. The Court below has observed that if at all limitation is to be computed from the date of inspection of record, it had been inspected, on 12. 8. 1999 and, therefore, the objections could be filed within 30 days thereafter. The reasoning adopted by the Court below is wholly untenable and unjustified for one simple reason that the certified copy of the award was made available to the Union of India for the first time on 6. 9. 1999 and, therefore, the inspection of record by the Union of India on 12. 8. 1999 was of no consequence. There is nothing on record to indicate that on 12. 8. 1999, the date on which the record was inspected by the Union of India, the award was not in a sealed cover and was available for inspection. 9. 1999 and, therefore, the inspection of record by the Union of India on 12. 8. 1999 was of no consequence. There is nothing on record to indicate that on 12. 8. 1999, the date on which the record was inspected by the Union of India, the award was not in a sealed cover and was available for inspection. The subsequent date of inspection, i. e. , 21. 10. 1999, is of no consequence for the purposes of computing the limitation. The period of limitation as has been determined above, is to be reckoned from 6. 9. 1999 on which date the certified copy of the award was with the Union of India. The objection undoubtedly came to be filed with a delay of 21 days. In the application under Section 5 of the Limitation Act moved on behalf of the Union of India, adequate and sufficient reasons have been stated for condoning delay in filing the objections. In my view, the position of the Union of India before the Court below was unenviable and bristled by too many complexities to get over the award. There were various official rigmaroles. Before the objections could be filed, the matter tossed about from one table to another. The district Government counsel who appeared for Union of india before the Court below was also consulted. In these circumstances, the delay of only 21 days cannot be treated to be inordinate. ( 16 ) THE Honble Supreme Court in Collector Land Acquisition, Anantnag and another v. Mst. Kati and others, JT 1987 (1) SC 537, has held that the expression sufficient cause employed by the Legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. The primary function of a court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for approaching Courts in different situations is not because on the expiry of such time a bad cause would tansform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack mala fides or is not shown to have been put forth as a part of dilatory strategy, the Court must show utmost consideration to the suitor. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack mala fides or is not shown to have been put forth as a part of dilatory strategy, the Court must show utmost consideration to the suitor. The test to determine sufficiency of the explanation for delay is whether the factual statement made was probable and acceptable. (See Punjab Small Industries and Export Corporation Ltd. v. Union of India, 1995 (Supp.) 4 SCC 681. Reference may also be made to a recent decision of Apex Court in State of Bihar and others v. Kameshwar Prasad Singh and another, JT 2000 (5) SC 389, in with the earlier decisions of the Apex Court on the point have been considered in paragraphs 11, 12 and 13 of the Report and the delay of 679 days was condoned. In view of the various decisions of the Apex Court, the present one was a fit case in which delay of twenty one days in filing objections under Section 30 of the Act should have been condoned by the Court below. Instead of referring the matter back to the Court below, I propose to condone the delay in filing the objection under Section 30 of the Act. The application for condonation of delay would thus stand allowed and the objections filed by the Union of India are now to be decided on merits. ( 17 ) SRI Sbishir Kumajr, learned counsel for the petitioner urged that the dispute was referred under Section 20 of the Act without there being an arbitration clause and in respect of the contract to which clause 24 (of the Conditions of Contract) was inapplicable; that the arbitrator who was appointed was a layman as he was not well versed about the nature of the goods supplied and did not have expertise to guage the defects pointed out by the department ; that the arbitrator misconducted himself by awarding escalated damages in the absence of escalation clause. With regard to misconduct of the arbitrator, a reference was made to the decision of the apex Court in State of Orissa v. Sudhakar Das, 2000 (2) Supreme Today 199 and V. G. George v. India Rear Earth Ltd. and another, JT 1999 (2) SC 629. With regard to misconduct of the arbitrator, a reference was made to the decision of the apex Court in State of Orissa v. Sudhakar Das, 2000 (2) Supreme Today 199 and V. G. George v. India Rear Earth Ltd. and another, JT 1999 (2) SC 629. Sri Shishir Kumar further argued that the award does not reflect the mental process of the arbitrator in fixing the lump sum amount of compensation/damages and, in any case, the claim for compensation does not flow from the contract of supplies. It was further urged that the view taken by the arbitrator is to be characterised as not emanating from the agreement and does not fall squarely within the various clauses of the agreement. The arbitrator has. it was further urged, not applied his mind to the pleadings adduced before him and the terms of the contract, it was maintained that it sounds ridiculous that as against a sum of Rs. 79. 257 withheld by the Union of India, award was made for payment of compensation/damages to the extent of Rs. 12. 50 lacs with interest at the rate of 18 per cent annum against the fantastic and wholly untenable claim of Rs. 50 lacs with interest at the rate of 22. 75 per cent per annum. All these submissions were repelled by Smt. Ira Sharma. After condonation of delay, the objections filed under Section 30/33 of the Act are to be decided by the Court below on merits. Lest the rights and interest of either of the parties may be prejudiced, this Court cannot embark upon an investigation of the merits of the objections. Therefore, I refrain from making any observations touching the merits of the objections raised on behalf of the Union of India and leave the matter to be decided on merits by the Court below uninfluenced by any observation made by this Court. ( 18 ) TO sum up, it may be mentioned that the present petition is maintainable as the controversy with regard to the interpretation of statutory provisions has come to be raised which required consideration by this Court. The period of limitation for filing the objection under Section 30 of the Act is to be reckoned w. e. f. 6. 9. 1999 and the delay of 21 days in filing the objection is liable to be condoned. The period of limitation for filing the objection under Section 30 of the Act is to be reckoned w. e. f. 6. 9. 1999 and the delay of 21 days in filing the objection is liable to be condoned. The objections have to be decided by the Court below with all expedition on merits after affording a reasonable opportunity of hearing to the parties. In the conspectus of the above facts, the writ petition filed by Union of India succeeds and is to be allowed. ( 19 ) NOT it is the time to take Up and consider the Revision No. 371 of 2000 filed by the supplier. It raises the question of the compliance of the Interim order dated 22. 5. 2000 (quoted above)passed by this Court in the present writ petition mentioned above. The civil court was closed on 30. 6. 2000 on account of summer vacations. A sum of Rs. 15. 97,908 through draft dated 28. 6. 2000 was filed before the Court below on the opening day. i. e. , on 1. 7. 2000. The supplier/revisionist took the objection before the Court below that the deposit was not in accordance with the interim order passed by this Court in the writ petition, inasmuch as on correct calculations only a sum of Rs. 14,87,702 was required to be deposited and that the deposit was not in the name of the Court. By the order dated 29. 7. 2000 impugned in the civil revision application, in hand, the Court below has directed that the amount shall continue to remain in deposit subject to further clarification by this Court. Smt. Ira Sharma urged that a disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party. She founded this argument on the observations made by the Apex court in A. Venkatasubbiah Naidu v. S. Chellapan and others, AIR 2000 SC 3032 , in which it was observed that a party who secured an order cannot take advantage of it with complying with its requirements. She also urged that the High Court cannot correct errors of fact, however gross or even errors of law unless the said errors have relation to the Jurisdiction of the Court to try the dispute itself (Ramlal Dhirta Ram v. Delhi Municipal Corporation, AIR 1973 Del 112 ). I have anxiously perused the order dated 29. 7. She also urged that the High Court cannot correct errors of fact, however gross or even errors of law unless the said errors have relation to the Jurisdiction of the Court to try the dispute itself (Ramlal Dhirta Ram v. Delhi Municipal Corporation, AIR 1973 Del 112 ). I have anxiously perused the order dated 29. 7. 2000 and find that the Court below has unnecessarily resorted to technicalities. The fact remains that on behalf of the Union of India, an amount which was far in excess of the amount required to be deposited under the interim order of this Court in writ petition had, in fact, been deposited within time. If Union of India has made wrong calculations and as a matter of abundant precaution, more than the amount required to be deposited has been deposited by it, the supplier can have no cause of complaint. The deposit made by the Union of India shall be treated to be in sufficient and substantial compliance of the interim order dated 22. 5. 2000. Moreover, since the writ petition has been allowed on merits, the revision application, which is the outcome of the interim order passed in the writ petition, falls to the ground. ( 20 ) IN the result, the Writ Petition No. 20956 of 2000 which has succeeded is allowed. The order dated 19. 2. 2000 passed by the Court below, i. e. . IVth Additional Chief Metropolitan magistrate/additional Civil Judge, Kanpur Nagar, copy of which is Annexure-8 to the writ petition, is hereby quashed. Condoning the delay in filing the objection under Section 30/33 of the Act. it is directed that the Court below shall decide the same on merits according to law. The civil Revision No. 371 of 2000 is dismissed as being devoid of any merits. ( 21 ) THE substantial amount of Rs. 15,97,908 is lying in deposit with the Court below. In order to balance the rights of the parties, it would be proper if the said amount is directed to be invested in Fixed Term Deposit of some Nationalized Bank. ( 21 ) THE substantial amount of Rs. 15,97,908 is lying in deposit with the Court below. In order to balance the rights of the parties, it would be proper if the said amount is directed to be invested in Fixed Term Deposit of some Nationalized Bank. It is, therefore, directed that the Court below shall immediately invest the amount deposited by the Union of India in a Fixed Term Deposit with the Main Branch of State Bank of India Initially for a period of one year so that it may earn interest and this deposit shall be subject to ultimate decision and adjudication of the objections filed by the Union of India against the award. .