Matharoo Associates v. Jain Vishwabharti Institute
2011-08-19
DINESH MAHESHWARI
body2011
DigiLaw.ai
JUDGMENT 1. - After having heard the learned counsel for the petitioner and after having perused the material placed on record, this Court is not persuaded to consider interference in the impugned order dated 15.02.2011 (Annex.I) whereby the learned District Judge, Merta while dealing with an application under Section 34 of the Arbitration and Conciliation Act, 1996 ('the Act of 1996') in Case No. 11/2006, has allowed an application moved by the applicant (the respondent herein) under Order 6, Rule 17 of the Code of Civil Procedure so as to amend the objection petition taking additional grounds of challenge to the arbitral award. 2. It is submitted on behalf of the petitioner that there is a specific limit of time provided for filing the objection petition under Section 34 of the Act of 1996; and the Limitation Act as such is not applicable. Thus, according to the petitioner, once the objection petition had been filed, the respondent (the original applicant) was not entitled to take any other ground of objection by way of amendment; and the learned District Judge has acted wholly without jurisdiction in allowing filing of further objections by way of the so-called amendment. The submissions as made on behalf of the petitioner have their own shortcomings in the present case and cannot be accepted. 3. It appears from the factual matrix and chronology of events that upon arising of the dispute between the parties relating to an agreement whereby the petitioner was to provide architectural and allied services to the respondent-University, the petitioner made a claim and took up the proceedings for reference of the dispute to arbitration. The matter was ultimately taken up before the District Judge, Merta in an application under Section 11 of the Act of 1996. The petitioner had allegedly appointed its arbitrator and the learned District Judge directed the respondent University to appoint their arbitrator by the order dated 12.10.2001. Without going into other details, being not relevant for the present purpose, suffice is to observe that as per the petitioner, the respondent also nominated the arbitrator and the arbitrators so appointed by the parties nominated the third arbitrator and thus, the Arbitral Tribunal came to be constituted. 4. According to the petitioner, the parties participated in the abritral proceedings before the Arbitral Tribunal constituted as aforesaid; and the proceedings ultimately culminated in the award dated 13.12.2004.
4. According to the petitioner, the parties participated in the abritral proceedings before the Arbitral Tribunal constituted as aforesaid; and the proceedings ultimately culminated in the award dated 13.12.2004. The respondent-University has challenged the award so made by filing an objection petition under Section 34 of the Act of 1996 that remains pending with the District Judge, Merta (Case No. 11/2006) and therein, the order impugned has been passed. 5. Before coming to the order impugned, relevant it is to notice that apart from filing the aforesaid objection petition before the District Judge, the respondent University also moved this Court by filing a writ petition (CWP No. 1152/2007) challenging the order dated 12.10.2001, the arbitration proceedings and so also the award dated 13.12.2004. The said writ petition came to be decided by this Court on 07.01.2010 (Annex. E-2). This Court took note of the contentions of the parties essentially in relation to the order dated 12.10.2001 and also noted the stand of the parties that the jurisdiction of the District Judge to appoint the arbitrator was questioned by the present respondent before the Arbitral Tribunal too but such an objection was rejected by the order dated 31.01.2003; and further that the objection with regard to jurisdictional error of the District Judge in passing the order dated 12.10.2001 has also been taken by the petitioner in the application filed under Section 34 of the Act of 1996. This Court in the said order dated 07.01.2010, inter alia, observed as under:- "17. It is common ground between the parties that the objection as to the jurisdiction of learned District Judge to appoint the arbitrator was raised by the petitioner before the Arbitral Tribunal, which stands rejected vide order dated 31.1.03 and further that the objection with regard to jurisdictional error of the District Judge, Merta in passing the order dated 12.10.01 has also been taken by the petitioner in the application preferred under Section 34 of the Act of 1996, for setting aside the arbitral award." 6. Further, this Court found that challenge to the order dated 12.10.2001 in the writ petition at a belated stage could not be entertained when the arbitration proceedings had already been concluded and the petitioner had filed an appropriate application under Section 34 of the Act of 1996. This Court, thus, dismissed the writ petition but with the following observations:- "23.
Further, this Court found that challenge to the order dated 12.10.2001 in the writ petition at a belated stage could not be entertained when the arbitration proceedings had already been concluded and the petitioner had filed an appropriate application under Section 34 of the Act of 1996. This Court, thus, dismissed the writ petition but with the following observations:- "23. However, as discussed above, all questions with regard to jurisdiction of the authority designate to deal with the request for appointment of arbitrator and in respect of the validity of the order dated 31.1.03 passed by the Arbitral Tribunal, rejecting the plea questioning the jurisdiction of the Arbitral Tribunal are open to be raised by the petitioner before the District Court in proceedings under Section 34 of the Act of 1996." 7. It appears that the present respondent proceeded to move the application for amendment of the objection petition after the decision of the aforesaid writ petition by the order dated 07.01.2010 while relying on the above quoted observations of this Court. By way of the amendment, essentially, the validity of the order as passed by the learned District Judge on 12.10.2001 has been questioned and thereby, the very constitution and jurisdiction of the Arbitral Tribunal has also been questioned. The learned District Judge has allowed the prayer for amendment essentially with reference to the above quoted observations of this Court in CWP No. 1152/2007. 8. This Court is not making any comments on the merits of the objections suggested by the respondent but in the face of the observations as made by this Court in CWP No. 1152/2007, the learned District Judge cannot be said to have committed a jurisdictional error in passing the impugned order dated 15.12.2011 and in allowing taking of the objections relating to the jurisdiction of the District Judge in passing the order dated 12.10.2001 on the application under Section 11 of the Act of 1996. 9. Having regard to the totality of the circumstances of the case and the nature of the objections sought to be raised, it cannot be said that by way of amendment, anything new on facts has been allowed to be pleaded. The objections are essentially of legal nature and cannot be said to be anything beyond or away from the objections already taken against the validity of the arbitral award.
The objections are essentially of legal nature and cannot be said to be anything beyond or away from the objections already taken against the validity of the arbitral award. Moreover, when such questions, on the jurisdiction of the District Judge in dealing with request for appointment of arbitrator and with respect to the authority of the Arbitral Tribunal, have specifically been kept open by the order of this Court in CWP No. 1152/2007, the learned District Judge has not committed any jurisdictional error in allowing the amendment for taking of such objections in writing. The learned District Judge has, yet, taken care to observe that the non-applicant (the petitioner herein) was entitled to file a reply to the amended objection petition and the matter would be proceeded in accordance with law thereafter. 10. In view of the aforesaid, this Court is satisfied that the the order as passed by the learned District Judge does not suffer from any jurisdictional error nor leads to failure of justice. No case for interference in writ jurisdiction is made out. 11. In the last, the learned counsel for the petitioner has made a request for expeditious proceedings before the learned District Judge, Merta. Suffice is to observe in this regard that it is always open for the petitioner to make the relevant request before the District Judge concerned for expeditious proceedings and upon making of such a request, the learned District Judge shall be expected to give it due and appropriate consideration.Subject to the observations foregoing, the writ petition fails and is, therefore, dismissed.Writ Petition Dismissed. *******