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2010 DIGILAW 63 (JK)

Bawa Ram v. Chief Engineer

2010-02-10

SUNIL HALI

body2010
1. The matter was referred to the arbitrator nominated by the respondent. He entered upon the reference and passed a detailed speaking award. The arbitrator examined the claims of both the petitioner and the respondent and awarded an amount of Rs. 17,39,385.45 along with interest in favour of the claimant and Rs. 4,81,243.73 in favour of the respondent-Union of India. The award came to be filed in this Court by the arbitrator and consequently notices were issued to the parties. The Union of India filed objections to the award. Reply to the same was filed by the claimant. On pleadings of the parties, the following three issues were framed by the Court on 8.3.2002:- 1. Whether the arbitrator has misconducted himself or the proceedings, if so, to what effect ? O.P. Objector. 2. If the award is otherwise invalid ? O.P.P 3. Relief. The objector Union of India was directed to file affidavits in support of their objections within six weeks with advance copy to the learned opposite counsel. 2. It seems that affidavits by way of evidence were not filed by the objector. Vide Court order dated 12.2.2004, four weeks last and final opportunity was granted to the objector/ Union of India to file the affidavits. This was not done, as a result of which this court vide order dated 29.4.2004 closed their right to file the affidavits and the matter was directed to be listed for hearing. 3. Heard learned counsel for the parties. 4. The award can be set-aside on the grounds mentioned in Section 30 of the Arbitration Act , 2002 (1945 A.D). For facility of reference these grounds are reproduced as under: - (a) That the arbitrator or umpire has misconducted himself or the proceedings; (b) That an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35: (c) That the award has been improperly procured or is otherwise invalid. 5. The procedure for setting aside the award is contained in section 33. It contemplates that any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined, shall apply to the court and the court shall decide the question on affidavits. 6. It contemplates that any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined, shall apply to the court and the court shall decide the question on affidavits. 6. Section 33 of the Act clearly contemplates that the validity of award can be questioned only after the parties files affidavits in support of their contentions. Mr. R.P. Jamwal, Advocate appearing for the Union of India states that award is required to be challenged under Section 30, in case there is a challenge to the existence or validity of arbitration agreement. According to him there is no requirement of filing affidavits as the award is challenged by him only under Section 30. On the other hand, Mr. Gupta states that section 30 only provide grounds for challenging the award. The procedure is provided under Section 33 which contemplates that filing of affidavits in support of the pleadings. He further stated that award is required to be made rule of the court and decree interms thereof required to be passed under the provisions of the Civil Procedure Code which is applicable in the instant case. According to him Order 16 rule 20 contemplate that if any party fails to give evidence or to produce any document, the court may pronounce the judgment against him or make such order as it thinks fit. 7. There is no dispute that section 30 provides grounds of challenge to the award and procedure for setting aside the same is contemplated under Section 33. The contention of Mr. Jamwal cannot be sustained as Section 33 not only contemplates the challenge to the validity to the agreement, it also provides for challenge to the validity of an award passed by an arbitrator. It contemplates both the situations. 8. There is no force in the contention of Mr. Jamwal that Section 33 does not contemplate the procedure for challenge to an award. 9. Having said so, the objectors having not supported their contentions by any evidence, as a result of which objections filed will not effect the merits of award as there is no supporting evidence to question the award. Mr. Jamwal that Section 33 does not contemplate the procedure for challenge to an award. 9. Having said so, the objectors having not supported their contentions by any evidence, as a result of which objections filed will not effect the merits of award as there is no supporting evidence to question the award. Mr. Gupta relied upon the Division Benchs Judgment of this Court reported in 1978 JKLR 516 titled Smt. Gian Kaur v. S. Atma Singh where it is held that: "19. From what has been stated above the following conclusions may be drawn: 1. An award may be set aside by the a court suo moto where it contains a direction to a party to do an act prohibited by law or where its voididty or any other illegality including the one relating to any one or more of the grounds mentioned in section 30 is apparent on its face. 2. Where an award is sought to be set aside on grounds mentioned in section 30 and the pea raised is such which requires evidence to be recorded an application within the period prescribed under Art. 158 of the Limitation Act shall be imperative. 3. An award may be challenged either on grounds mentioned in Section 30 or on grounds of non existence or invalidity of the arbitration agreement or reference but in each case an application shall have to be made under Section 33 of the Act. 4. Where an award is to be challenged on grounds mentioned in Section 30, the period of limitation for making an application to that effect shall be 30 days as provided under Art. 158 and where it is to be challenged on grounds of non-existence or invalidity of the arbitration agreement or reference the period of limitation shall be three years as provided in Art. 181 of the Limitation Act." 10. The import of the judgment clearly contemplates that when an award is required to be challenged whether on the grounds mentioned under Section 30 or 33, after the objections/application is made to that effect, the contentions raised therein are required to be supported by affidavits by way of evidence as provided under Section 33. 11. I, therefore, dismissed the application of the objector Union of India and direct that the award passed by the sole arbitrator Sh. 11. I, therefore, dismissed the application of the objector Union of India and direct that the award passed by the sole arbitrator Sh. T.K. Mittal dated 30.06.2001 in respect of contract agreement No. CEUZ-46/1987-88, be made rule of the Court. Decree sheet be drawn accordingly. The claimants shall also be entitled to interest @ 6% per annum from the date of decree till its realization.