Jagatram Trehan & Sons vs Union Of India And Ors.
1995 Latest Caselaw 27 Del

JUDGMENT

Usha Mehra, J.

(1) Let the application be numbered. In order to appreciate the objections raised against the decree passed by this Court dated 3rd August,1993, the facts leading to the passing of the decree were that respondent-Union of India appointed Shri N.H.Chandwani as the sole arbitrator to decide the disputes/claims between the parties arisen from Agreement No. 6/EE/CD-IV/ 81-82relatingto450Type'C'QuartersatLodiRoadGroup-IV. The said arbitrator made and published his award on 5th December,1990. The Union of India in Suit No. 2106/91 filed an application under Sections 14 and 17 of the Arbitration Act ( hereinafter called the 'Act') seeking direction to the said arbitrator to file his award. Similarly, petitioner filed a suit bearing No. 305/91 under Sections 14 and 17 of the Arbitration Act seeking same directions.

(2) Pursuance to the direction given in Suit No. 305A/91, the arbitrator filed his award along with the proceedings. Notice of filing of the award was issued to both the parties. Mr.Sailesh Kapur, Advocate accepted notice on behalf of the petitioner on 22nd September,1992. The Union of India, however, was served with notice of filing of the award on 9th November, 1992. One Mr.Virsen, U.D.C. of the office of Executive Engineer (Construction) Division No. 4, C.P.W.D. appeared on 5th January,1993 and sought time which was granted. The matter was thus listed on 8th February,1993. Again the case was adjourned to 31st March, 1993 on which date Mr. Rajiv Trivedi, Advocate, appeared on behalf of the Union of India. The matter was re notified for 18th May, 1993 on which date Mr.Trivedi again appeared, but till then no objections to the award were filed. This all find mention in the proceeding recorded by the Deputy Registrar, dated 18th May,1993. As objections to the award had not been filed within the stipulated period of limitation, therefore, the matter was listed before Court on 3rd August,1993 for making the award rule of the Court. On 3rd August,1993, Ms.Sudha Srivastava, appeared for the Union of India. On that date the award was made rule of the Court and the decree in terms of the award was ordered to be prepared.

(3) Petitioner sought execution of the said decree. It is against this execution, that objections under Section 47 of the Code of Civil Procedure (in short CPC) have been filed, inter alia, on the ground that the award was illegally procured and that the Arbitrator after having resigned had no authority to render the award. Such an award was without jurisdiction.

(4) I have heard the learned Counsel for the parties and perused the record. Mr.Harish Malhotra, appearing for petitioner contended that by invoking the provisions of Section 47, Cpc, the Judgment - debtor has tried to circumvent the provisions of the Arbitration Act. If the arbitrator had rendered the award without jurisdiction or the petitioner procured the award illegally, the recourse open to the judgment - debtor was to file objection under Sections 30 and 33 of the Arbitration Act. Having failed to file those objections within the statutory period, the judgment - debtor cannot be allowed to raise these very objections under the garb of Section 47. This would amount to enabling the respondent to file objections after the expiry of the statutory period of limitation to file the objections. This is not the scope of Section 47, CPC. I find force in these submissions of Mr.Malhotra. The provisions of Section 47 of Civil Procedure Code . which are reproduced as under, do not envisage that objections to the award can be filed on the ground that said award was illegally procured or was rendered by the Arbitrator who had no jurisdiction:- SECTION 47: 47. Questions to be determined by the Court executing decree - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such questions shall for the purposes of this Section, be determined by the Court.

(5) Reading of Section 47 of C.P,C. clearly shows that questions can be raised against the decree if those relate to the execution, discharge or satisfaction of the decree. Objection of illegal procurement of the award does not relate to either execution or discharge or satisfaction of the decree.

(6) MR.J.P. Singh, appearing for objector on the other hand contended that he was not only relying on the illegal procurement of the award but also to the fact that the arbitrator had already resigned at the time the impugned award was rendered by him. Therefore, such an award is void ab initio and without jurisdiction. To support his arguments he drew my attention to an office order passed by the respondent dated 20th November,1990. Vide this office order, directions were given to the Arbitrator that in respect of the arbitration cases which have been heard and ripe for making award, he should give award within ten days and in respect of the cases where award cannot be given within ten days, from those cases he should resign as arbitrator. Mr.Singh, also drew my attention to the letter written by the arbitrator dated 30th November,1990, relinquishing the charge of his office as arbitrator. Relying heavily on these letters Mr.Singh contended that as Mr.Chandwani had relinquished the charge as arbitrator, therefore, this award announced by him after resigning is without jurisdiction. I am afraid this argument has no force. Reading of the office order which is reproduced hereinafter would show that directions were given to the arbitrator to give the award regarding those cases in which arguments had been heard and were ripe for giving award. He was asked to resign as arbitrator and return the cases where the award could not be given within ten days : OFFICE order dated 20.11.1990: No. 1511/Z/89-Ed-l Govt.of India Ministry of Urban Development New Delhi, Dated : Nov,1990 Office Order In pursuance of the orders issued in this Ministry office order No. 15011 /2 50 Ed.I dated 5th November,1990. Shri N.J.Chandwani at present on Deputation as Arbitrator in this Ministry is relieved of his duties on the afternoon of 30th November, 1990 with instructions to report for duty as Member, Appropriate Authority , Income Tax Department, Calcutta immediately. 2. It has also been decided that in respect of arbitration cases which have been heard and are ripe for giving award Shri Chandwani should give awards within 10 days. In respect of cases where such awards cannot be given within 10 days and other cases, Shri Chandwani should resign as Arbitrator immediately under intimation to all concerned. sd/- V.S. Raman Under Sect.to Govt.of India

(7) No date is given on this letter but Mr.Chandwani's letter dated 30th November,1990 reproduced as under, shows that it was issued on 20th November , The arbitrator rendered the award on 5th December,1990, i.e. within the time given in this office order to make the award.

Certificate of Relinquishment Of Charge Certified that I have on the afternoon of 30th November,1990 relinquished charge of the office of Arbitrator in the Ministry of Urban Development in pursuance of office order to. 15011/2/89-EV/1 dated 20th November,1991. sd/- Relinquishing Officer's Signature N.H. Chandwani Designation: Arbitrator Station: Delhi.

(8) Moreover, Mr.Chandwani resigned from the post of arbitrator in the Ministry where he had come on deputation. But there is no letter produced by respondent to show that Mr.Chandwani resigned as arbitrator from these proceed- ings. In the absence of any letter by Mr. Chandwani residing as arbitrator from this case, it cannot be said that the award rendered by him was without jurisdiction. Merely relinquishing the post which he was holding on deputation does not mean he resigned from this case as arbitrator. For the reasons stated above, I find no merits in this application. The same is accordingly dismissed. EX.No. 37/94 Mr.Malhotra states that since the application has been dismissed, warrants of attachment may be issued against the judgment - debtor as the amount of decree has not been paid. Mr.Singh on the other hand seeks time to make payment. At request, adjourned to 10th February, 1995.