Godavari Marathwada Irrigation ... vs M/S. Ghai Construction Engineers ...
2016 Latest Caselaw 7236 Bom

                                                              WP No. 7502/14
                                          1




                                                                          
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO. 7502 OF 2014

     Godavari Marathwada Irrigation
     Development Corporation,
     Through Executive Engineer,




                                                 
     Majalgaon Project Division,
     Kesapuri Camp, Majalgaon,
     Beed.                                        ....Petitioner.




                                       
                      Versus

     M/s. Ghai Construction Engineers
                             
     and Contractors, Plot No. 289, N-3,
     CIDCO, Aurangabad.                           ....Respondent.
                            
                                         WITH
                            WRIT PETITION NO. 7503 OF 2014

     Godavari Marathwada Irrigation
     Development Corporation,
      

     Through Executive Engineer,
     Majalgaon Project Division,
   



     Kesapuri Camp, Majalgaon,
     Beed.                                        ....Petitioner.

                      Versus





     M/s. Ghai Construction Engineers
     and Contractors, Plot No. 289, N-3,
     CIDCO, Aurangabad.                           ....Respondent.

     Mr. P.M. Shah, Senior Counsel i/b. Shri. S.G. Bhalerao, Advocate





     for petitioner.
     Mr. A.K. Gawali, Advocate for respondent.

                                        CORAM : T.V. NALAWADE, J.

DATED : 15th November, 2016.

ORAL JUDGMENT :

1) Rule. Rule made returnable forthwith. By consent,

WP No. 7502/14

heard both the sides for final disposal.

2) The proceedings are filed to challenge the order of

dismissal made by Ad-hoc District Judge, Beed in proceedings

which were filed under section 34 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as 'the Act' for

short).

3)

The proceedings were filed by present petitioner to

challenge the award given by Arbitrator in favour of the

contractor. The award was given on 14.2.2002 and the

proceedings under section 34 the Act were filed on 4.5.2002.

Thus, the proceedings were filed within 90 days, as per the

period mentioned in section 34 of the Act. It appears that office

of the District Court had raised four objections during scrutiny

and they were as under :-

"01. That, applicant not shown para of valuation for jurisdiction and court fees.

02. That, applicant not mentioned name as he Executive Engineer in capacity file this application.

03. Court fees affix Rs.50/- and application is setting aside order of award as application is in a monetary grain.

04. That, application filed beyond the limitation i.e. date of award 14.02.2002 and filed on

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04.05.2002 The concern advocate be heard on above

points as tenability"

After that, following orders were made

"ORDER DT. 25.06.2002 Advocate be heard as sought in office note, within two weeks."

"ORDER DT. 30.12.2003

the

The office objections are not removed by that time proceeding shall dismissed for want of compliance."

Sd/-

IInd Ad-hoc Addl. Dist. Sessions Judge, Beed."

4) The learned Senior Counsel for petitioner submitted

that the objections were not valid objections. The learned Senior

Counsel submitted that so far as objection No. 1 is concerned,

there was no question of showing valuation for jurisdiction and

Court fees as every award needs to be challenged under section

34 before the Court mentioned in section 34 of the Act and that

jurisdiction is given irrespective of value of the award. The

learned Senior Counsel submitted that there was no meaning in

the second objection as the title of proceeding filed under

section 34 shows that Executive Engineer of the concerned

project had signed the proceedings and through him, the

WP No. 7502/14

petitioner had filed the said proceedings. The learned Senior

Counsel submitted that there was no need to mention the name

of Executive Engineer and this power is given to the persons by

virtue of the post and the persons holding the post do change.

5) The learned Senior Counsel submitted that the third

objection could not have been raised as the Court fees was not

payable in such proceedings and first time, due to the

amendment made in the year 2009 in the Court Fees Act, the

Court fees became payable on the basis of valuation of the

matter.

6) The learned Senior Counsel submitted that there was

no room to take fourth objection as in section 34 itself, the

period of 90 days is given for filing proceeding under section 34

of the Act and the proceeding was filed within this period.

7) This Court holds that all the aforesaid submissions

made by the learned Senior Counsel need to be accepted. It is

not disputed that prior to year 2009, the Court fees was not

payable for such proceedings and so, objection at Sr. Nos. 1 and

3 could not have been raised. The Corporation like petitioner can

authorize its officer by naming the post to file the proceeding

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and so, there cannot be insistence of naming officer. Thus, all

the four objections could not have been raised. It is unfortunate

that the Court considered all the four objections as valid

objections. When the Court passes order of dismissal for not

removing office objections, the Court is expected to apply mind

and even when the counsel for applicant or plaintiff is absent.

The Court is expected to ascertain as to whether the objections

are valid. The objections raised by the clerical staff are accepted

as they are and aforesaid circumstances are not considered and

so, it can be said that the Court did not apply judicial mind. In

any case, the aforesaid objections could not have been raised

and as the proceedings were filed within 90 days, the

proceedings ought to have been registered.

8) The learned counsel for respondent, contractor

raised objection to the tenability of the present proceedings. The

learned counsel submitted that the order dated 30.12.2003

made by the District Court was one under provision of Order 7,

Rule 11 of Civil Procedure Code. He submitted that in view of the

definition of 'decree' given in section 2 (ii) of Code of Civil

Procedure, such order needs to be treated as 'decree' and so,

the appeal ought to have been filed. On this point, the learned

Senior Counsel for petitioner drew the attention of this Court to

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provision of section 37 of the Act and submitted that appeal is

not tenable. The provision of section 37 is as under :-

"37. Appealable orders.- (1) An appeal shall lie from the following orders and from no others to the Court authorised by law to hear appeals from

original decrees of the Court passing the order, namely:-

                            (a)    refusing   to   refer   the     parties       to




                                             
                   arbitration under section 8;
                             
                            (b)    granting or refusing to grant any
                   measure under section 9;
                            (c)    setting aside or refusing to set aside
                            
                   an arbitral award under section 34.
                   (2)      An appeal shall also lie to a Court from an
                   order of the arbitral tribunal-.
      


                            (a)    accepting the plea referred to in sub-
   

section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."

When there is Special Legislation, the provisions made for

particular purpose in Special Legislation need to be used and the

general law made available in Civil Procedure Code cannot be

used. The provision of section 37 of the Act shows that no appeal

WP No. 7502/14

is provided under this section, under Special Law to challenge

the present order of Ad-hoc District Judge. On this point, the

learned Senior Counsel for petitioner placed reliance on the

observations made by the Division Bench of this Court in case

reported as 2006 (6) Mh.L.J. 678 [State of Maharashtra and

Anr. Vs. Ramdas Construction Co. and Anr.]. In that case,

the order of rejection of delay condonation application made by

the District Court was challenged by filing appeal under section

37 of the Act. This Court held that under section 37, no appeal is

provided to challenge the order made on delay condonation

application. The learned Senior Counsel submitted that these

observations can be used for the present purpose also in view of

the nature of order made and the specific provision of section 37

of the Act. This submission need to be accepted. Thus, the

petition is tenable.

9) The learned counsel for respondent submitted that in

the past, only filing of proceeding under section 34 was sufficient

for employer or contractor as the fact of filing proceeding itself

was making the award unenforcable and the filing of proceeding

was giving automatic stay to the execution of the award. The

learned counsel for respondent submitted that there is possibility

that the petitioner intentionally did not take steps before the

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District Court. The learned counsel for respondent submitted

that the present proceeding came to be filed after about 11

years and due to latches, the petitioner is not entitled to any

relief.

10) The learned Senior Counsel submitted that the

petitioner Corporation first time realized that the aforesaid order

was made in matter filed by it, when order of attachment came

to be made in execution proceeding filed by the contractor in the

year and when show cause notice was issued for attachment of

Bank account. The learned Senior Counsel submitted that the

Corporation then deposited the amount of Rs. one Crore in each

matter to show bonafides. The learned Senior Counsel submitted

that this circumstance also needs to be taken in to consideration

in the present proceeding.

11) The aforesaid circumstances of the present matters

show that it is a peculiar case. Though the present proceedings

came to be filed after about 11 years to challenge the order, the

fact remains that the order under challenge could not have been

made by the learned Ad-hoc District Judge. In view of these

circumstances and as the public money is involved in the matter,

this Court holds that the order needs to be set aside. No loss will

WP No. 7502/14

be caused to contractor as interest meter will continue to run.

12) The learned counsel for respondent placed reliance

on some observations made by the Apex Court in the case

reported as 2013 ALL SCR 3236 [Esha Bhattacharjee Vs.

Managing Committee of Raghunathpur Nafar Academy

and Ors.]. The Apex Court has quoted the considerations which

are required to be kept in mind while dealing with the application

filed for delay condoantion. There cannot be dispute over the

proposition made by the Apex Court in the case cited supra. The

facts and circumstances of each and every case are always

different. Peculiar facts of the present case are already quoted

by this Court.

12) In the result, the petitions are allowed. The orders

made by the learned Ad-hoc District Judge by which the

proceedings filed under section 34 of the Act by the present

petitioner were dismissed are hereby set aside. The proceedings

are to be treated as proceeding filed under section 34 of the Act

on 4.5.2002 and registration date is to be shown as 4.5.2002. As

the proceedings were filed in the year 2004 itself, the law which

was prevailing in the year 2004 will be applicable. The amount

deposited by petitioner as per the order made by this Court is

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allowed to be withdrawn by petitioner.

Rule is made absolute in aforesaid terms.

Time of four weeks is given to the other side to

challenge the order made by this Court.

[ T.V. NALAWADE, J. ] ssc/