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2011 DIGILAW 619 (BOM)

Sira Constructions v. Sudhir Vishnu Aanjarlekar

2011-06-08

D.G.KARNIK

body2011
Judgment : 1. Rule returnable forthwith, Mr.Dani i/b waives service for the respondent. By consent heard forthwith. 2. By this petition, petitioner challenges the order dated 6 December passed by the District Judge1, Khed, District Pune rejecting his application under section 47 of the Code of Civil Procedure. 3. Petitioner is the judgment debtor. An award was passed against the petitioner in an arbitration proceedings under the Arbitration and Conciliation Act 1996 (for short “the Arbitration Act”). As the award was not satisfied, respondent put the award in execution. At the first instance, the petitioner made an application at Exhibit 12 before the executing court contending that award was not executable on seven grounds viz: 1. There was no subsisting contractual agreement between the parties. 2. The arbitration agreement was not at all in existence between the parties. 3. Mr.Aagharkar was never appointed as an arbitrator. 4. The alleged dispute was never referred to Mr.Vilas Aagharkar. 5. The arbitrator is self appointed arbitrator, hence he was prohibited by law to proceed with the arbitration proceedings. 6. The proceeding and award made by the alleged arbitrator is illegal and void. 7. The decree passed by arbitrator without jurisdiction was nullity and void. By its order dated 7 August 2009, the executing court rejected the application. 4. Petitioner filed writ petition no.2600 of 2011 against the order of the executing court dated 7 August 2009. The writ petition came up for hearing before this court on 7 July 2010. At that time, counsel for the petitioner made a statement that petitioner had filed a substantive suit raising the issues which were the very issues raised in the writ petition and therefore, the petitioner may be allowed to withdraw the writ petition with liberty to pursue the alternative remedy. By an order dated 7 July 2010, this court permitted the petitioner to withdraw the writ petition with liberty to pursue alternative remedy without expressing any opinion as to the maintainability of the alternative remedy. It appears that the alternative remedy was not pursued by the petitioner and the suit filed by it is still pending in the trial court. In the mean while, the petitioner made a fresh application before the executing court at Exhibit 25 on 8 January 2010 again contending that the decree was not executable. It appears that the alternative remedy was not pursued by the petitioner and the suit filed by it is still pending in the trial court. In the mean while, the petitioner made a fresh application before the executing court at Exhibit 25 on 8 January 2010 again contending that the decree was not executable. The ground raised in Exhibit25 were similar to the grounds raised earlier with one additional ground that the award was obtained by fraud and therefore was void and not executable. By an order dated 6 April 2011 (wrongly typed as “6 December 2011”), the application was rejected. That order is impugned in the present petition. 5. In my view, the application (exhibit-25) is totally misconceived. The petitioner cannot be allowed to raise the very same contentions over and over again merely by adding one more ground of fraud. He cannot object to the execution of the very award on the ground that it is under principles of res judicata as well as constructive res judicata applies to the different stages of the same proceedings. A ground of challenge which could have been raised at the first instance at an interim stage of the suit and has not been raised, cannot be allowed to be raised at any subsequent interim stage in the very proceedings. The ground that the award is a nullity as it was obtained by fraud could have been raised by the petitioner when he made an application at Exhibit12. He did not raise it. Even in the writ petition filed against the order of the executing court rejecting Exhibit 12, he did not raise the said ground but withdrew the writ petition. He cannot file another application again contending that the award is void as it is obtained by fraud. In my view, the second application was an abuse of the process of the court. Learned District Judge has therefore rightly rejected it. Writ Petition is accordingly dismissed and rule is discharged with costs which are quantified at Rs.5,000/.