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Uttarakhand High Court · body

2017 DIGILAW 402 (UTT)

Director General, Medical Health & Family Welfare, Uttarakhand v. Vijay Developers Pvt. Ltd.

2017-07-24

SERVESH KUMAR GUPTA

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JUDGMENT : 1. Since the similar controversy is delved in both the revisions titled above, hence are being taken up together by this Court for adjudication by this common judgment and order. 2. Having heard learned Counsels of either parties, it transpires that way back in 2003, the work was entrusted to M/s Vijay Developers Private Limited by Uttarakhand Health Development System Project (for brevity, it will hereinafter call as ‘UKHDSP’) under an agreement executed between the two. Such work pertained to renovation as well as construction of the District Hospital, Dehradun. CLR No. 44/2016 is connected with renovation, while CLR No. 47/2016 does have its connection with the construction work. The work was accordingly done by the agency M/s Vijay Developers as per the agreement, but somehow the dispute erupted between the two regarding the time span of the completion of work as well as the quantum of payment under different heads. 3. Such dispute usually arises where a big work is entrusted to the agency either straightway by the Government or any of its departments. So, under a clause as was entailed in such work agreement, an arbitral tribunal was constituted which was led by the sole arbitrator Lt. Gen. (Retired) S.K. Jain. Such tribunal got the representation of the claimant Mr. Sanjeev Kumar Sharma on behalf of the work agency, whereas on behalf of the Government, following persons were representing: 4. Mr. Vinod Kumar Pant, Superintending Engineer, UKHDSP; Mr. N.C. Gairola, Engineer Consultant; Mr. Bharat Chauhan, Accounts Officer, and Mr. D.P. Bijalwan, D.G.C. (Civil). 5. After having the wide consultations and hearing both the parties, the arbitral tribunal rendered its award dated 15.10.2009. Respondent never made any compliance of such award. So, the execution case no. 3/2011 was launched by the decree holder against the Director General (Health) on the ground that under the Right to Information Act, the information was procured that UKHDSP is no more in existence and its all assets and liabilities have been transferred and accepted by the Director General, Medical and Health. It was also informed that the office of UKHDSP was situated in Chandan Nagar, Dehradun, which was also the office of Chief Medical Officer, Dehradun and such office of CMO is still subsisting there. All the relevant records regarding the said project are lying in the office of CMO, Dehradun. It was also informed that the office of UKHDSP was situated in Chandan Nagar, Dehradun, which was also the office of Chief Medical Officer, Dehradun and such office of CMO is still subsisting there. All the relevant records regarding the said project are lying in the office of CMO, Dehradun. In addition to, it was also informed that such project has completely been closed in September 2009. 6. Here, the Court can have a note of the fact that the award of arbitral tribunal was rendered on 15.10.2009. So, before rendering such award, it was not communicated even on formal score that the project has been closed, as has been stated above. It was continued to be presented by the D.G.C. (Civil) on behalf of the Government. Otherwise, there was no reason for Mr. D.P. Bijalwan and all the officers holding the high office like Superintending Engineer to continue and to participate in the proceedings before the sole arbitrator. 7. Learned Counsel on behalf of the revisionist has objected the execution proceedings on the ground that the award was against the UKHDSP, and not against the Director General, Health and Family Welfare. So, it could not be executed. He has drawn the attention of this Court towards the applicability of Section 79, Order 27 Rule 3 and Order 27 Rule 5-A of the Civil Procedure Code in this matter. 8. I think such argument is highly misconceived and is rejected by this Court for the simple reason that such execution proceedings are pursuant to an award. Here neither the Government is suing nor the Government is being sued, rather the execution is being pursued to get the fruits of the award, which was rendered in the presence and after due participation of both the parties. 9. It is difficult to accept that such award cannot be executed against the Director General, Health because such office of the Director General is also the part and parcel (offshoot) of the Government. Otherwise, there was no reason for Mr. D.P. Bijalwan, D.G.C. (Civil) to participate in the whole proceedings before the arbitral tribunal. That apart, Section 35 of the Arbitration and Conciliation Act makes it abundantly clear that an arbitral award shall be final and binding on the parties and persons claiming under them respectively. 10. Otherwise, there was no reason for Mr. D.P. Bijalwan, D.G.C. (Civil) to participate in the whole proceedings before the arbitral tribunal. That apart, Section 35 of the Arbitration and Conciliation Act makes it abundantly clear that an arbitral award shall be final and binding on the parties and persons claiming under them respectively. 10. Office of the Director General, Health has stepped in the shoes of UKHDSP and the same is abundantly clear from the answer supplied under the Right to Information Act by the same office of the Director General, Health. 11. I think there is no force in these revisions. Both the revisions are hereby dismissed at the threshold. Interim order, if any, stands vacated. 12. The executing court will take every care to expedite the proceedings without rendering hearing to the irrelevant arguments of the counsel or any other uncalled for objections under Section 147 CPC (if any) just to hamper the course of execution.