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Madhya Pradesh High Court · body

2020 DIGILAW 882 (MP)

Manvendra Construction Company v. State of M. P.

2020-09-09

G.S.AHLUWALIA

body2020
ORDER 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 07.8.2020 (Annexure P-1) passed by respondent No. 1, order dated 4.5.2018 (Annexure P-2) and order dated 25.5.2019 (Annexure P-3) passed by the respondents No. 2 and 3 and order dated 11.1.2018 (Annexure P-4) passed by respondent No. 4. 2. Since the controversy lies in a very narrow compass, therefore, it is not necessary to mention the facts of the case in detail. A NIT was issued for establishment of BOT Weighing Machine in the premises of Krishi Upaj Mandi Samiti, Datia and the petitioner was the successful bidder and, accordingly, BOT Weighing Machine was established by the petitioner. There was some dispute with regard to the payment of premium and, therefore, different impugned orders were passed by the different authorities. Initially, the order dated 11.1.2018 was passed by Krishi Upaj Mandi Samiti, Datia directing the petitioner to deposit Rs.38,64,883/-, against which the petitioner had filed a writ petition before this Court which was registered as W.P. No. 9456/2018 and by interim order dated 27.4.2018, it was directed that in case, if the petitioner deposits an amount of Rs.21,00,000/- within a period of one month from the date of the said order, then the machine shall be permitted to be operated. During the pendency of the said writ petition, the order dated 4.5.2018 (Annexure P-2) was passed by Managing Director, M.P. Rajya Krishi Vipdan Board and in the light of the said order, W.P. No.9456/2018 was disposed of with liberty to the petitioner to approach the Mediator/Arbitrator. Thereafter, the petitioner filed an application under section 11 of the Arbitration and Conciliation Act, 1996 (in short “Act, 1996”) for change of Arbitrator which was registered as A.C. No. 100/2018. However, the same was withdrawn by order dated 12.3.2019. Ultimately the matter was taken up in Arbitration and by the impugned Arbitral Award dated 25.5.2019 (Annexure P3), the order dated 4.5.2018 was maintained. It is not out of place to mention here that by mistake, the Arbitrator had titled this order as an appellate order. It appears that against the Arbitral Award dated 25.5.2019 (Annexure P-3), the petitioner approached the State of M.P. and by the impugned order dated 7.8.2020 (Annexure P-1), the claim of the petitioner has been rejected. 3. Heard the learned counsel for the petitioner on the question of admission. It appears that against the Arbitral Award dated 25.5.2019 (Annexure P-3), the petitioner approached the State of M.P. and by the impugned order dated 7.8.2020 (Annexure P-1), the claim of the petitioner has been rejected. 3. Heard the learned counsel for the petitioner on the question of admission. Section 34 of the Act, 1996 reads as under:- “34 Application for setting aside arbitral award. —(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if— (a) the party making the application furnishes proof that— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation. 1. Explanation. 1. — For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-- (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. Explanation 2.--For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute. 2(A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the round of an erroneous application of the law or by re appreciation of evidence. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.” 4. Since the Award dated 25.5.2019 (Annexure P-3) was titled as an order passed in an appeal, therefore, it created a confusion in the mind of the petitioner and, therefore, it approached the State Government. However, under the facts and circumstances of the case, the order dated 25.5.2019 (Annexure P-3) cannot be treated as an order in an appeal, but it is an Award by an Arbitrator/Mediator, against which the only remedy available to the petitioner is to approach the Court of Competent Jurisdiction under section 34 of the Act. 5. Accordingly, this petition is disposed of with liberty to the petitioner that if it is so advised then it can approach the Court of Competent Jurisdiction under section 34 of the Act, 1996. 6. At this stage, it is submitted by the counsel for the petitioner that since a considerable time has been consumed by the petitioner by approaching the State Government as well as this Court by filing the present petition, therefore, some breathing time may be granted to the petitioner to file an application under section 34 of IPC. 7. Considered the submissions made by the counsel for the petitioner. 8. Section 34(3) of the Act, 1996 provides for condonation of delay. This Court has already held that the proceedings before the State Government as well as before this Court in the present petition are not maintainable. Therefore, the petitioner can always file an application under section 34(3) of the Act, 1996 for exclusion of time which was consumed by the petitioner by approaching wrong forum. 9. With the aforesaid observations, this petition is finally disposed of.