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2010 DIGILAW 252 (JK)

Surender Kumar Sharma v. Union Of India

2010-05-03

Sunil Hali

body2010
1. One Ved Parkash Sharma was an army Contractor and he got a contract for supply of meat dressed at Narian vide CD No.29 of 1973-74 for the period from 03.05.1973 to 31.03.1974. It is contended by the petitioner that Contractor fell ill and despite his illness, Contractor managed the supplies but the Contract Operating Officer malafidely and improperly started rejection of animals produced by Contractor just to harm him. 2. The dispute seems to have arisen between the parties, as a result of which an application under Section 20 of the Arbitration Act was filed in this Court and ultimately one Major General A.M.Sethna was appointed as an Arbitrator, who passed the award against the Contractor. Being aggrieved of the said award, said Contractor filed an application under Sections 30 and 33 of the J&K Arbitration Act, 2002 for setting aside the award. It was contended that the said Arbitrator has not passed the award regarding the items of claims referred to him on the application of the Contractor. 3. Learned Single Judge of this Court vide its order dated 11.03.1987 set aside the award. An appeal being CIA No. 33/87 came to be preferred by the Union of India against the order of the learned Single Judge. During the pendency of said CIA, Contractor-Ved Parkash died and Union of India filed an application for bringing on record S/Sh.Suresh Kumar Sharma and Surender Sharma as his legal representatives. Said CIA came to be disposed of exparte vide Order dated 23.02.2000 upholding the order passed by the learned Single Judge. However, a direction was issued to appoint a fresh Arbitrator to adjudicate upon the claims as put across by the appellant as well as the Contractor. 4. It seems that thereafter the petitioner herein had received a communication No.363/26/Q dated 26.09.2000 from Colonel R.K.Sharma informing that he has been appointed as Arbitrator by Quarter Master General Branch vide letter dated 06.09.2000. In response to the communication aforesaid, petitioner replied vide letter dated 25.10.2000 stating therein that original claimant-Ved Parkash Sharma has died leaving behind five sons and two daughters and notices are required to be issued to all the legal representatives. The petitioner further informed the Arbitrator that none of the brothers of the petitioner is named as Suresh Kumar Sharma and notice has wrongly been issued to him. 5. The petitioner further informed the Arbitrator that none of the brothers of the petitioner is named as Suresh Kumar Sharma and notice has wrongly been issued to him. 5. Having been informed by the petitioner about the legal representatives of the deceased, the Arbitrator informed the petitioner to send details of all legal representatives and their correct addresses. The said details are stated to have been supplied by the petitioner to the Arbitrator on 30.01.2001, who received the same on 14.02.2001. The petitioner has placed on record postal receipt in this regard. It seems that without waiting for the legal representatives of the deceased, the award has been passed by the Arbitrator on 16.02.2001. The said award again came to be questioned by the petitioner by filing an application under Section 30 and 33 of the J&K Arbitration Act before this Court on the grounds that the Arbitrator has mis-conducted himself in passing the award without summoning the parties to the dispute. A specific stand of the petitioner is that even though requisite information regarding legal representatives was submitted to the Arbitrator on 30.01.2001 which were received by him on 14.02.2001, award has been passed without hearing the legal representatives. 6. The stand of the respondents is that information regarding death of deceased Ved Parkash was conveyed to this Court which was dealing with the CIA No.33/87. On the basis of opinion so supplied, the Arbitrator issued notice to the present petitioner and one Suresh Kumar Sharma. It is admitted in para no.8 of the reply that petitioner has disclosed the fact that deceased contractor has left behind legal representatives. However, nothing has been stated as to what action has been taken by the Arbitrator after receipt of notice. It is contended that notice was issued to the present writ petitioner but he has not appeared. 7. I have heard learned counsel for the parties and perused the record. 8. The facts in dispute are that the award has been passed by the Arbitrator without summoning the parties to the dispute. Award passed by the Arbitrator on 16.02.2001 does not mention as to when notice was issued to the petitioner and as to whether any information was sought in this behalf by the Union of India from the petitioner regarding the names of legal representatives of the deceased. Award passed by the Arbitrator on 16.02.2001 does not mention as to when notice was issued to the petitioner and as to whether any information was sought in this behalf by the Union of India from the petitioner regarding the names of legal representatives of the deceased. The award of the Arbitrator has only made mention that the petitioner has not appeared on any of the dates mentioned in the notices. So exparte award has been passed and passing of exparte award without summoning the parties to the dispute, is a legal misconduct. It is not in dispute that only two persons were arrayed as legal representatives of deceased Ved Parkash Sharma. Out of which Suresh Kumar Sharma was wrongly shown as legal representative of Ved Parkash. After receipt of notice, the petitioner informed the Arbitrator that there are other legal representatives who were required to be summoned. In this regard, information was supplied by the petitioner on 30.01.2001 which was received by the Arbitrator on 14.02.2001. Despite having received the information, the award came to be passed on 16.02.2001. It was responsibility of the respondents-Union of India to bring on record the legal representatives of deceased-Ved Parkash. Initially two persons were impleaded as respondents being legal representatives of the deceased in the High Court admittedly there were other legal representatives, who were not impleaded as party respondents. On this information alone, appeal was decided in exparte as such petitioner did not have any knowledge about the pendency of the appeal. After having been informed about the same, the respondents were required to inform the Arbitrator to summon the legal representatives of the deceased. Necessity to summon the legal representative is not contained in the Arbitration Act, 2002 (1945 A.D.). However, in view of Section 41 of the Act supra, the provisions of Code of Civil Procedure have been made applicable. 9. Section 50 of the CPC contemplates that decree can be executed against the legal representative of the deceased to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such amounts as it thinks fit. 10. 10. The aforesaid mandate of law is required to be complied with before concluding any proceedings including the proceedings pending before the Arbitrator. Arbitrator has failed to follow this, as such, is in guilty of having committed a legal mis-conduct. 11. Erroneous application of law in summoning the parties to the dispute is a legal misconduct. Arbitrator has mis-conducted himself in passing exparte award. I, therefore, set aside the award dated 16.02.2001 and refer the matter back to the Arbitrator who shall enter upon the reference afresh and make the award accordingly. 12. Arbitration application is disposed of along with connected CMP.