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Rajasthan High Court · body

2009 DIGILAW 2247 (RAJ)

Union of India v. Somnath Gupta

2009-10-29

GOPAL KRISHAN VYAS

body2009
Hon'ble VYAS, J.—In this miscellaneous appeal, filed by the Union of India through the Chief Engineer, Project Chetak C/o 56 APO, under Section 39 of the Arbitration Act against the judgment and decree dated 6.4.1996 passed by the District Judge, Bikaner in Civil Misc. Case No. 142/94. 2. According to facts of the case, agreement was arrived at in between the appellant and respondent for supply of stone and stacking of stone metal, stone screening and sand in sector Pugal Bajju on the road Birdwal Pugal Shri Mohangarh. During the progress of the aforesaid work, dispute arose in between the parties to the contract with regard to terms of the contract. As per arbitration clause contained in the said contract, matter was referred to the Arbitrator by the Engineer in Chief. The Arbitrator passed award on 23.8.1994. Thereafter, respondent firm filed award in the Court of District Judge, Bikaner and, in the application filed for making the award Rule of Court, notices were issued by the Court. 3. A reply to the aforesaid application was submitted on behalf of the appellant and the appellant contested that the Arbitrator has not complied with the provisions of the Arbitration Act, therefore, it is alleged that the Arbitrator has misconducted in the proceedings while making the award and, accordingly, the award should not be made Rule of Court. It is also contended that since the Arbitrator has not awarded any interest, therefore, while making the award Rule of Court, fresh award cannot be made in favour of the respondent. 4. The learned District Judge decided both the applications and passed decree and judgment which is impugned in this appeal. 5. Learned counsel for the appellant vehemently argued that the learned District Judge has committed serious error of law in passing the judgment under Section 17 of the Arbitration Act without following the mandatory requirements under Sections 13 and 17 of the Act. Further, it is argued that the District Judge was first required to dispose of the objections submitted by the appellant for setting aside the award under Section 33 and only after deciding the application under Section 33 of the Arbitration Act, he could have passed the judgment in terms of Section 17of the Act. Further, it is argued that the District Judge was first required to dispose of the objections submitted by the appellant for setting aside the award under Section 33 and only after deciding the application under Section 33 of the Arbitration Act, he could have passed the judgment in terms of Section 17of the Act. Therefore, it is obvious from the perusal of the judgment that the learned District Judge has not followed the procedure laid down under Section 17 of the Act. Thus, the learned District Judge has committed a serious error of law while passing the impugned judgment. 6. Learned counsel for the appellant vehemently argued that the learned District Judge has not given any finding with regard to claims raised by the respondents and objections filed by the appellant. Further, it is submitted that the learned District Judge has not given any reasoning as to how the award and judgment can be passed. The claimant has categorically raised objections claim-wise but the Arbitrator has not considered the material document while giving its award, therefore, the judgment rendered by the learned District Judge, which is under challenge, is totally unreasoned and, so also, without giving any finding upon the objections raised by the appellant. 7. It is further argued that the learned District Judge has committed serious illegality in awarding future interest to the claimant at the rate of 18% per annum from the date of award made by the Arbitrator while allowing the application filed by the respondent under Section 14 of the Act for making the award Rule of Court. Learned counsel for the appellant vehemently contended that the respondent had not submitted any application for modification of the award and only submitted application under Section 14 of the Act for making the award Rule of Court, therefore, in absence of application for claiming modification in the award, the learned District Judge had no jurisdiction to award future interest in favour of the respondents. 8. Learned counsel for the appellant lastly argued that judgment impugned is not in consonance with the provisions of the Arbitration Act, therefore, the same may be set aside. 9. 8. Learned counsel for the appellant lastly argued that judgment impugned is not in consonance with the provisions of the Arbitration Act, therefore, the same may be set aside. 9. Per contra, learned counsel appearing on behalf of the respondent submits that the award in question is in consonance with law which does not require any interference because at the time of deciding application for making award Rule of Court the learned District Judge has considered all aspect of the matter, therefore, no interference is required in this case. 10. After hearing both the parties and perusing the relevant provisions of law, my adjudication is as follows. 11. For deciding the controversy involved in this appeal, first of all, Section 17 of the Act of 1940 is required to be taken into consideration which is as follows: "17. Judgment 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." 12. Upon perusal of the above section, it is revealed that the legislature has imposed a duty upon the Court at the time of adjudication upon the application under Section 14 of the Act that 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. Though appeal does not lie against such judgment, but, in view of the circumstances as provided in Section 17, appeal can be entertained. 13. Upon perusal of the judgment passed by the learned District Judge, it is revealed that the judgment dated 6.4.1996 whereby the learned District Judge made the award Rule of Court and further granted interest at the rate of 18% per annum from 25.2.1994, the same is not based upon any adjudication. 14. Admittedly, the Arbitrator has not awarded any interest to the claimant respondent. 14. Admittedly, the Arbitrator has not awarded any interest to the claimant respondent. Interest was awarded by the learned District Judge obviously beyond the terms of award without any adjudication or deciding objections raised by the appellant before the Court. Therefore, when the legislature cast duty upon the Court to decide the objections, if any, then, such objections are required to be decided. But, upon perusal of the order dated 6.4.1996, which is impugned in this appeal, it clearly speaks that the learned District Judge has miserably failed to even observe what were the objections raised by the appellant; meaning thereby, the learned District Judge was under obligation to at least decide the objections so raised by the appellants. 15. Likewise, for the purpose of granting interest, reasons were required to be given; but it is nowhere observed what are the objections and why the Court is granting interest. 16. As a result, this appeal is allowed. Judgment and decree impugned in this appeal dated 6.4.1996 is set aside and matter is remitted to the learned District Judge, Bikaner in Civil Misc. Case No. 142/94 to decide the same afresh in accordance with law, within a period of two months. The parties herein are directed to appear before the learned District Judge, Bikaner on 7.12.2009. 17. Record is received here. Office to send the record back forthwith.