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2006 DIGILAW 597 (DEL)

KOHINOOR RUBBER WORKS PVT. LTD v. UNION OF INDIA

2006-03-23

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THIS petition under Sections 32 and 33 of the arbitration Act, 1940 (hereinafter referred to as the said Act ) is directed against the arbitration proceedings which were commenced and continued on the basis of a claim filed by the respondent before the learned arbitrator (Mr P. C. Kaicker) on the submission of a claim. On 9. 7. 1982, the petitioner filed an application challenging the authority of Mr Kaicker to proceed with the arbitration. No reply to this application was filed by the respondent. In the meanwhile, Mr Kaicker had resigned as the Arbitrator and in his place one Mr. M. L. Gupta was appointed as the Arbitrator who also resigned and ultimately Mr. R. N. Mishra came to be appointed as the Arbitrator. It is during the pendency of proceedings before him that the present OMP came to be filed. Essentially, the petition is directed against the continuance of arbitration proceedings as also the initiation of arbitration proceedings by the respondent in view of the fact that in an earlier round, an award had already been made and the same had been made a Rule of the Court. It is the case of the learned Counsel for the petitioner that the subsequent claim filed by the respondent in the pending arbitration proceedings would be barred by the principles of order 2 Rule 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC ). On the other hand, Mr Gambhir, who appears for the respondent, submitted that the provisions of Order 2 Rule 2 itself permit such a claim being filed with leave of the Court which is exactly what has taken place in the present case. ( 2 ) TO appreciate these rival contentions of the parties, it would be necessary to narrate in brief the background of the case. Certain disputes had arisen between the petitioner and the respondent and in respect of which a petition under Section 20 of the said Act (Suit No. 431 A/1980) was filed by the petitioner. That petition was disposed of by an order of this Court referring the disputes to arbitration. The parties were before the arbitrator and the petitioner submitted its claim. The respondent also made its counter-claim. However, the petitioner raised objection with regard to the counter-claim being beyond the scope of the reference. That petition was disposed of by an order of this Court referring the disputes to arbitration. The parties were before the arbitrator and the petitioner submitted its claim. The respondent also made its counter-claim. However, the petitioner raised objection with regard to the counter-claim being beyond the scope of the reference. In these circumstances, the respondent moved an application before the then arbitrator (Shri p. C. Rao) to permit the respondent to withdraw the counter-claim inasmuch as the respondent had decided to make a separate reference in respect of the counterclaim. Accordingly, the respondent requested the learned arbitrator not to determine the counter-claim of the respondent in the dispute pending before the arbitrator for which purpose the respondent would make a separate reference. This application was dated 15. 3. 1982. On 15. 3. 1982 itself, the order sheet of the learned arbitrator reveals that the contractor (the petitioner) had no objection to the withdrawal of the counter-claim by the respondent from the reference. Accordingly, the learned arbitrator decided to exclude the counter-claim filed by the respondent from the reference pending before him. Thus, the arbitrator heard the parties only on the claim filed by the petitioner and ultimately made an award dated 31. 3. 1982 which was made a Rule of the Court on 30. 11. 1982. This award was in favour of the petitioner. The award has been executed and the money has been received by the petitioner under the award. ( 3 ) SINCE the exact wording of the order passed by the arbitrator is of material significance, it would be appropriate to reproduce the same in its entirety which reads as under: