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2002 DIGILAW 795 (KER)

The State Of Kerala v. P K Ramachandran

2002-12-04

K.A.ABDUL GAFOOR, PIUS C.KURIAKOSE

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JUDGMENT K.A. Abdul Gafoor, J. 1. The State has come up with this appeal as the State is aggrieved by the judgment in O.P. (Arb.) No. 82 of 1992 on the file of the IIIrd Additional Sub MFA 1120 of 1996 Decided on: 4122002 Judge, Ernakulam where the Arbitrator had filed an award and consequently where the respondents had filed an application under S.17 of the Arbitration Act for a judgment in terms of the award. The appellant also filed application under S.30 of the said Act to set aside the award. The application under S.17 filed by the respondent was allowed and the application filed by the appellate under S.30 of the Act was dismissed. 2. It is urged by the appellants that the Arbitrator has gone beyond the jurisdiction in so far as the agreement did not clothe the Arbitrator with the power to award an amount as indicated in the award. It is further submitted that Clause.51 of the Local Competitive Bidding conditions forming part of the general terms of the contract was not invoked by the respondent. In the absence of such invocation, there is lack of jurisdiction for the Arbitratory to consider an of the claims urged before him. It is further contended that the Arbitrator had misconducted with respect to point Nos. 4, 6 and 8 in the award in so far as the Arbitrator awarded additional cost incurred by the respondent for transportation of pieces of granite from Pathanathitta rather than from Kulakadavu quarry at Kumbanad, in so far as extra rate was granted for soling and metalling and in so far as compensation was granted in the count of idling on men and machineries. Its submitted that these are beyond the jurisdiction of the Arbitrator and therefore amount to misconduct. 3. While examining the matter, we find that the agreement in question was executed in Kottarakkara Taluk in Kollam District in respect of the work in connection with the Kallada Irrigation Project stretching in Kollam, Pathanamthitta and Idukki Districts and not in Ernakulam District. It is an admitted fact. In spite of that, the impugned judgment has been passed by the IIIrd Additional sub Judge, Ernakulam Stated to be merely based on the filing of the award by the Arbitrator in that Court under S.14 of the Act. 4. It is an admitted fact. In spite of that, the impugned judgment has been passed by the IIIrd Additional sub Judge, Ernakulam Stated to be merely based on the filing of the award by the Arbitrator in that Court under S.14 of the Act. 4. Subs.2 of S.14 of the Act enables the Arbitrator to file the award or signed copy thereof together with depositions and document forming part of the evidence on record, in 'Court'. Court is defined in S.2(c) as follows: "Court" means a Civil Court having jurisdiction to decide the question forming the subject matter of the reference if the same had been the subject matter of a suit, but does not, except for the purpose of Arbitration proceedings under S.21, include a small Cause Court". (Emphasis supplied). Therefore, the Court shall be a court where the cause of action had arisen. If the matter had been filed as a suit, it can never be in a court at Ernakulam. Therefore, the impugned judgment is totally without jurisdiction. 5. It is true that this contention was not urged in that court or even in the memorandum of appeal. We pointed out this aspect to the counsel appearing. Going by S.21 of the Code of Civil Procedure, 1908, the objection to the jurisdictional aspect shall not be allowed to be raised in appellate court, the counsel for respondent submits. This is not a case where the appellant raises the objection to the jurisdictional aspect, but one where the appellate court finds by itself that the Trial Court did not have jurisdiction to try the matter. Such aspect has to be brought to the notice of the Trial Court itself atleast by exercising the supervisory jurisdiction vested in us under Art.227 of the Constitution of India. 6. Moreover, this being a proceedings under special enactment, the Court conferred with that jurisdiction alone can consider the legality or otherwise of the award upon petition filed by either of the parties in terms of S.17 or S.30 of the Arbitration Act, 1940. As the Ernakulam court totally lacks jurisdiction, necessarily the impugned judgment has to be set aside on that ground. That court shall return the award to the Arbtratory concerned for filing it in appropriate court. It is submitted by the respondent that the agreement in question had been executed at Kottarakkara. Therefore, the Sub Court, Kottarakkara will get jurisdiction. As the Ernakulam court totally lacks jurisdiction, necessarily the impugned judgment has to be set aside on that ground. That court shall return the award to the Arbtratory concerned for filing it in appropriate court. It is submitted by the respondent that the agreement in question had been executed at Kottarakkara. Therefore, the Sub Court, Kottarakkara will get jurisdiction. The counsel for appellant concedes this fact. The sub Court, Ernakulam, if the Arbitrator is available shall return the award and documents filed by him for presentation to Kottarakara Sub Court. It shall thereupon transfer the other records to the Kottarakkara Sub Court. On the other hand, if the Arbitrator is not available to receive the award back, the Ernakulam Sub Court shall transmit the entire papers to the Sub Court, Kottarakara and the latter court shall deal with the matter in accordance with law.