M/S J. B. Construction Co. Ltd vs Union Of India And Anr
2021 Latest Caselaw 1344 Chatt

                                     1

                                                                  NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                       First Appeal No.67 of 2012

                        Reserved on 19.07.2021
                       Pronounced on 26.07.2021
     ● M/s. J.B. Construction Company, through its Partner Jaspal
       Sethi, aged about 55 years, S/o Late Gurdas (Correct name is
       Gurudayal) Sethi, R/o Tikra Para, Bilaspur, Distt. Bilaspur (C.G.)
                                                   ---- Appellant/Plaintiff
                                  Versus
     1. Union of India, Through Divisional Engineer 'North', S.E.C.
        Railway, Senior Divisional Office 'North', S.E.C. Railway, Bilaspur
        (C.G.)
     2. The General Manager, S.E.C.Railway, Bilaspur (C.G.)
                                           ---- Respondents/Defendants

For Appellant :Shri Ravindra Agrawal along with Shri Abhijeet Mishra, Advocate.

For Respondents :Shri Pratik Sinha, Advocate.

Hon'ble Shri Justice Sanjay S. Agrawal

C.A.V. Judgment/Order

1. This appeal has been preferred by the Plaintiff under Section 96

of the Code of Civil Procedure, 1908 (hereinafter referred to as

the CPC) questioning the legality and propriety of the judgment

and decree dated 12.01.2012 passed in Civil Suit No.16-B/2010

whereby the learned trial Court has dismissed the suit holding it

to be not maintainable.

2. Briefly stated the facts of the case are that the Plaintiff being a

partner of M/s. J.B.Construction Company instituted a suit

claiming refund of 432 number of fish plates or refund of

Rs.1,30,000/- in lieu thereof by submitting, inter alia, that he is

the railway contractor and has entered into an agreement with

the Defendants, Railway Department, on 22.11.2002 for the

completion of work of execution of various pathway works in

connection with 18 kms. CTR/TSR (16 kms. With Track Relaying

Train and 2 kms. Manually) and other miscellaneous works

worth Rs.41,17,405/- and the dispute, which has arisen between

the parties was decided by the arbitrator vide its award dated

12.02.2007. According to the Plaintiff, the alleged fish plates

(432 in number) have already been deposited by him with the

Railway Department prior to passing of the alleged award on

21.11.2006, yet a sum of Rs.1,30,032/- has been recovered from

him owing to non-deposit of the same. Further contention of him

is that despite the issuance of notice on 04.12.2008 seeking

refund of those fish plates or in lieu thereof for recovery of

Rs.1,32,032/-, recovered illegally from him based upon the said

award, no reply was ever given by the Railway Department,

which compelled him for the institution of the suit in the instant

nature, instituted on 05.05.2009.

3. While contesting the aforesaid claim, it is pleaded by the

Defendants that since the arbitrator has already passed the

award on 12.02.2007 after considering the dispute raised by the

Plaintiff as per the terms and conditions stipulated in the alleged

agreement and since the same has already attained its finality

and, as the Plaintiff has failed to question the same under

Section 34 of the Arbitration and Conciliation Act, 1996 (for

brevity, the 'Act of 1996'), therefore, the suit as framed is not

maintainable and deserves to be dismissed.

4. After considering the evidence led by the parties, it was held by

the trial Court that the alleged fish plates have been returned by

the Plaintiff vide receipt memo dated 21.11.2006, i.e., prior to

passing of the arbitral award dated 12.02.2007 and held further

that since the dispute as alleged herein was already decided by

the arbitrator vide its award dated 12.02.2007 and which has

neither been sought to be questioned nor has been assailed by

the Plaintiff as provided under Sections 33 and 34 of the Act of

1996, therefore, the claim of him cannot be held to be

maintainable. As a consequence of it, the suit has been

dismissed holding it to be not maintainable, which has been

impugned by way of this appeal.

5. Learned counsel for the Appellant/Plaintiff submits that the

finding of the Court below holding the suit to be not maintainable

under Sections 33 and 34 of the Act of 1996 is apparently

contrary to law. According to him, since 432 fish plates have

already been deposited with the Railway Department, therefore,

non-returning the same or its cost is thus a dispute of civil nature

and the trial Court has, therefore, committed a serious illegality

in holding the suit to be not maintainable. The judgment and

decree under appeal is, therefore, liable to be set aside.

6. On the other hand, learned counsel for Respondents/Defendants

has supported the judgment and decree under appeal as passed

by the trial Court.

7. I have heard learned counsel for the parties and perused the

entire record carefully.

8. The main question which arises for determination in this appeal

is as to whether the suit as framed seeking return of alleged 432

fish plates or its cost thereof from the Railway Department has

rightly been held to be not maintainable based upon the arbitral

award dated 12.02.2007?

9. From perusal of the record, it appears that by virtue of an

agreement (Ex.P.1), the Plaintiff, a partner of M/s. J.B.

Construction Company, was awarded the work for the

completion of the work of execution of various pathway works in

connection with 18 kms. CTR/TSR (16 kms. with Track Relaying

Train and 2 kms. Manually) along with other miscellaneous

works under the terms and conditions stipulated therein.

Admittedly and according to the general condition of contract

and rules, a dispute, which has arisen between the parties, was

referred to the arbitrator on the basis of the application made by

the Plaintiff and, one of the disputes considered by the arbitrator

was in relation to cost of 432 fish plates worth Rs.3,30,912/-.

10. After considering the aforesaid dispute, it was observed by the

arbitrator vide its award dated 12.02.2007 (Ex.P.4) that they (432

fish plates) were not returned by the Plaintiff and that by

considering the cost of it to the tune of Rs.1,32,032/- has

directed for its recovery from the Plaintiff.

11. According to the Plaintiff, the alleged 432 fish plates have

already been returned on 21.11.2006, i.e., prior to passing of the

said award on 12.02.2007 and has succeeded to establish the

said fact by producing the receipt memo (Ex.P.2) in this regard.

But, it appears, as observed herein above, that the dispute as

raised herein by the Plaintiff was one of the subject matters

before the arbitrator and which has already been decided

therein. Therefore, in view of said background, the alleged

award, as passed by the arbitrator was to be questioned by the

Plaintiff as per the provisions prescribed under Section 34 of the

Act of 1996. Having failed to assail the same, the Plaintiff

cannot be permitted to re-agitate the same in the instant suit and

the trial Court has, therefore, rightly held that the suit as framed

is not maintainable and I do not find any infirmity in the same.

12. Consequently, the appeal, being devoid of merits, is accordingly

dismissed. No order as to costs.

13. A decree be drawn accordingly.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani