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2016 DIGILAW 314 (JK)

Union of India v. D. Khosla

2016-06-04

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. Impugned is the judgment delivered by the learned District Judge Jammu in File No. 42/Award, titled M/s D. Khosla and Co. v. Chief Engineer, dated 11.01.2014 in terms whereof application filed by Union of India under Sections 30 and 33 of the Arbitration Act, 1940 has been dismissed and the award made rule of the Court. 2. The appeal filed under Section 39 of the Arbitration Act, 1940 has been entertained on 19.03.2014, then vide Order dated 10.06.2014, operation of the award has been stayed subject to deposit of the entire awarded amount along with interest accruing thereon within eight weeks, by the same order, record has been send for. 3. The respondent by instant application registered as MP No. 01/2015, has questioned the maintainability of the appeal and as such its dismissal on various grounds as projected in the application. 4. Learned counsel for the respondent with all vehemence first highlighted that inaccurate/erroneous amounts/averments in the memorandum of the appeal warrant dismissal of the appeal. Buttressing the stance submitted that on page No. 2 of the memorandum of the appeal the expected value of the contract agreement is mentioned by the appellant as Rs. 1,34,70,000/- (One crore thirty four lakh seventy thousand only) and then on page No. 4, it is mentioned that the arbitrator has awarded Rs. 7,74,57,500.25/- (Seven crore seventy four lakh fifty seven thousand five hundred and twenty five paisa only) whereas on page No. 8, it has been mentioned that in a contract of Rs. 90,59,000/- (ninety lakh fifty nine thousand only), the arbitrator has awarded Rs. 8,65,39,218.71/-(Eight crore sixty five lakh thirty nine thousand two hundred eighteen and seventy one paise only). The contradictory amounts are misleading and will give rise to a position for appellate court to itself discover as to what is the amount to be determined. Further added that on page No. 5, dotted blank space has been left. 5. Learned counsel for the appellant submits that due to some inadvertence, omission/error in mentioning the amount does not warrant dismissal of the appeal when the pleadings are adequately complete leaving little scope for any confusion or for any discovery. 6. While preparing pleadings which form base for adjudication of the issues, the parties are required to be vigilant. Casual approach is absolutely unacceptable. 6. While preparing pleadings which form base for adjudication of the issues, the parties are required to be vigilant. Casual approach is absolutely unacceptable. The contradiction about the amount as referred to should not have been there. It appears that while preparing the memo of the appeal, a little bit of haste has been exhibited in mentioning the amounts, as a result whereof, two contradictory amounts have been mentioned as referred to above and in addition thereto on page No. 5 of the memo of the appeal, it has been recorded as under: "The Arbitrator awarded Rs" 7. Now the question is as to whether in essence such a mistake or contradiction in mentioning the amounts entails dismissal of the appeal. The answer has to be 'no' because the error is such which is rectifiable in terms of Section 153 of the Code of Civil Procedure. Learned counsel for the appellant is permitted to rectify the pointed out error by reflecting the actual amounts at the relevant places i.e. on page No. 2, page No. 4 and page No. 8 as referred to above as well as at the dotted blank space in the memo of the appeal on page 5, under the supervision of the Registrar (Judicial) Jammu. 8. The judgments as relied on by the learned counsel for the respondent reported as 1995 Cr.LJ 2910 and AIR 2010 SC 1384 , are on different facts because in the said judgments, pleadings were incomplete and inaccurate whereas in the instant case a rectifiable error has crept in, in reflecting the actual amounts, otherwise pleadings are complete. 9. The next contention as raised by the learned counsel for the respondent is that the appeal is incompetent because memorandum of the appeal is not accompanied by the copy of the actual decree when according to him, as per Order 41, Rule 1 CPC, memorandum has to be accompanied by the copy of the decree as is also a requirement in terms of Section 96 of the Code of Civil Procedure. Therefore, appeal may be dismissed. Supporting this contention has relied on the judgment reported in AIR 1961 SC 832 . Para 5 of the judgment is advantageous to be quoted: "5. The position of law under Order 41, Rule 1 , is absolutely clear. Therefore, appeal may be dismissed. Supporting this contention has relied on the judgment reported in AIR 1961 SC 832 . Para 5 of the judgment is advantageous to be quoted: "5. The position of law under Order 41, Rule 1 , is absolutely clear. Under the said rule, every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in that behalf and has to be accompanied by a copy of the decree appealed from and of the judgment on which it is founded. Rule 1 empowers the appellate Court to dispense with the filing of the judgment but there is no jurisdiction in the appellate Court to dispense with the filing of the decree. Where the decree consists of different distinct and severable directions enforceable against the same or several defendants the Court may permit the filing of such portions of the decree as are the subject-matter of the appeal but that is a problem with which we are not concerned in the present case. In law the appeal is not much against the judgment as against the decree; that is why Article 156 of the Limitation Act prescribes a period of 90 days for such appeals and provides that the period commences to run from the date of the decree under appeal. Therefore there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent". Next, he placed reliance on the judgment of this Court rendered in the case of Jammu and Kashmir State Financial Corporation v. Balwant Singh and Ors. The appeal had been dismissed being incompetent for want of annexing copy of the decree with the memorandum of the appeal. 10. The argument of the learned counsel is totally misplaced because along with the memo of the appeal, the appellant has annexed the certified copy of the decree. What in fact has happened is that while framing the decree, error had crept in, as a result whereof, subsequently learned District Judge has rectified its error vide its order dated 30.01.2014. It shall be advantageous to record the relevant portion of the concluding para of the judgment impugned dated 11.01.2014. What in fact has happened is that while framing the decree, error had crept in, as a result whereof, subsequently learned District Judge has rectified its error vide its order dated 30.01.2014. It shall be advantageous to record the relevant portion of the concluding para of the judgment impugned dated 11.01.2014. "The application moved by the UOI under the provisions of Sections 30 and 33 of the Arbitration Act, 1940 for setting aside the award being misconceived is hereby dismissed. The award is made rule of the Court. UOI shall pay interest on the decretal amount @ 18 per cent per annum from the date of the decree till realization of the decretal amount." 10. A Order in the decree sheet is recorded as under: "Order "The award being misconceived is hereby dismissed. The award made rule of the court. The UOI shall pay interest on the decretal amount @ 18 per cent per annum from the date of decree till realization of the decretal amount." 11. In the decree, an error has crept in by recording 'the award being misconceived is hereby dismissed'. Noticing the said error, the learned trial court rectified the said mistake vide its order dated 30.01.2014, therefore afresh decree sheet has been prepared in line with the conclusion of the judgment. Therefore copy of the amended decree has not been filed by the petitioner along with memo of the appeal. 03.2014. Firstly, there is nothing to attribute to the appellant because he was furnished the certified copy of the decree whatever was prepared, he has annexed the same with the appeal, later on, it has been amended to a limited extent that does not defeat the right of the appellant so as to say that the appeal is incompetent. 12. Apart from the aforesaid position, even otherwise now in view of the amended Order 41, Rule 1 CPC, there is no requirement of decree sheet to accompany the memorandum of the appeal. The Order 41, Rule 1 CPC has been amended in the year 2009. Now the requirement is that the memorandum shall be accompanied by a copy of the judgment. The word decree as earlier existed has been substituted. Section 96 of the CPC no doubt provides that appeal shall lie from every decree but the opening words of Section 96(1) CPC saves the position of Order 41, Rule 1 as it is today. Now the requirement is that the memorandum shall be accompanied by a copy of the judgment. The word decree as earlier existed has been substituted. Section 96 of the CPC no doubt provides that appeal shall lie from every decree but the opening words of Section 96(1) CPC saves the position of Order 41, Rule 1 as it is today. Same reads as under: "1. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court." 13. Order 41, Rule 1 CPC, as it exists after amendment is saved; therefore copy of the decree to accompany the memorandum of appeal is not required. The judgments, as relied on by the learned counsel for the respondent on this point that appeal being incompetent for want of memorandum being not accompanied with the copy of the decree, were rendered prior to the amendment of Order 41, Rule 1 CPC. Therefore, in view of change in law, same with all respects are not applicable. The contention is accordingly rejected. 14. Next, it was contended by learned counsel for the respondent that no document has been appended to substantiate the appeal, nor any ground has been projected. The appeal already stands entertained, all grounds can be raised and adjudicated upon while hearing the appeal on merits. Such position at this stage does not constitute ground for questioning the maintainability of the appeal. On hearing the appeal, merit will prevail. 15. For the stated reasons, application questioning maintainability of the writ petition is found to be without merit, as such, dismissed. The appeal shall be processed for hearing on its merits and be listed in the month of July, 2016 in a regular cause list.