R.P. Arora vs Union Of India & Ors.
1999 Latest Caselaw 754 Del

ORDER

Vikramajit Sen, J.

1. In I.A. 11627/97 it is stated that there is a delay of 7 months 23 days for filing of the Review Petition. It appears that knowledge of the Award being made Rule of the Court was obtained by the Respondents through the petitioner's letter dated 5.5.1997. Keeping in view the facts of the case it was to be expected that the respondents would react with immediacy. Instead, it appears that the Government Advocate was nominated on 28.5.1997 and a certified copy was applied for on 5.6.1997. It has been stated in the application that the nominated counsel was unwell and had not attended Court from 8th July, 1997 to 1st December, 1997 and on her rejoining, the review application was filed on 17.12.1997.

2. There is no doubt that the respondents has not prosecute the case with diligence. However in the interest of justice, the delay in filing of the Review Petition is condoned subject to the Respondents paying a sum of Rs. 2000/- as costs to the Petitioner.

3. The application in disposed of accordingly.

R.P. 27/97

4. By order dated 22.4.1997 the Award dated 28.6.1995 was made Rule of the Court. This petitioner has been filed for a review of those orders on the ground that the applicant had no notice of the filing of the Award and hence was unable to file objections to it.

5. In support of this Review Petition it has been contended by learned counsel appearing for the Union of India that it is the Executive Engineer, Construction Division II, CPWD, I.P. Bhawan, New Delhi which is the concerned office/division. It is submitted that it was this Officer who was representing the Union of India in the Arbitration Proceeding in which the impugned Award has been passed. To butters her argument the learned counsel for the Applicant has drawn my attention to the fact that in the proceedings before the Arbitrator, all correspondence was addressed to M/s. R.P. Builders on the one hand and the Executive Engineer, Construction Division II, CPWD, I.P. Bhawan, New Delhi on the other. She has further canvassed that on the passing of the Decree in terms of the Award the notice issued by the Advocate of the petitioner was addressed to this particular officer, i.e. the Executive Engineer, Construction Division II, CPWD, I.P. Bhawan, New Delhi. All these facts are not in dispute, except in respect of the last submission that the said letter, a copy of which was shown to me at the time of arguments, was also addressed to the Chief Engineer (NDZ-III), Delhi Central Circle-3, C.P.W.D., Sewa Bhawan, R.K. Puram, New Delhi. It was further submitted by learned counsel for the Union of India that in the arbitration proceedings the Claimant was mentioned in the name and style of M/s. R.P. Builders whereas in these proceedings the petitioner has been styled as Shri R.P. Arora, Sole Proprietor M/s. R.P. Builders. It is argued that because of this variance in the nomenclature adopted, the notice issued by the Court could not be linked to the concerned Award. Her argument proceeds that the Office of the Chief Engineer, who has been arrayed as Respondent No.2 in these proceedings, is so widespread and like an ocean that it was virtually impossible for the notice to be linked with the appropriate arbitration proceedings and the Award. Learned Counsel for the Union of India has imputed and contended that the change in the nomenclature of the Petitioner and the failure to array the Executive Engineer, Construction Division II, CPWD, I.P. Bhawan, New Delhi was a deliberate and dishonest effort/attempt of the Petitioner to obtain an ex parte decree. It is for these reasons that Objections could not be filed within time. It is a case of the Union of India that the learnt of the passing of the pendency of the proceedings now sought to be reopened by way of this review petition only when the legal notice dated 5.5.1997 was received by the Applicant.

6. Reliance has been placed on a decision of the Division Bench of this Court in Union of India Vs. Surinder Kumar, (DB). I have perused this decision and in my view it applies to all force to the facts of the present case. The grievance in the decided case was similar to that put forth by learned counsel for the Applicant in the instant case. It was observed as follows:

"We have considered the submission of the learned Counsel for the respondent but we are of the opinion that there was no proper service of the notice of the filing of the award on the appellant. The object of giving notice under Section 14(2) of the Act is to provide an opportunity to a party to submit objection to the award filed by an Arbitrator within a period of 30 days of the receipt of a notice in respect of filing of the award as per Article 119 of the Limitation Act. What is essential is that notice should post him with the knowledge of the award filed by the Arbitrator in particular matter. Notice should therefore, specify such details as would enable a party to identify the arbitration case, otherwise the notice will not serve the purpose for which it was given and will not meet the requirements of law. In the instant case the notice does not specify the name of the work, the division or department to which the matter pertained or even the contract number. It is needless to point out that Ministry of Urban Development has a very large area of operation covering several departments of the Government including C.P.W.D., which itself has several divisions spread all over the country. Therefore, unless the notice of filing of the award gives the details of the arbitration matter in which award is given, it cannot be considered as a proper notice in accordance with law. Besides, it was not enough to direct notice of the filing of the award to the Secretary to the Govt. of India, Ministry of Urban Development particularly when the notice failed to disclose the material particulars of the matter. In the circumstances, the notice ought to have been sent to the Executive Engineer, who was Engineer-in-charge of the work, and was the person who had singed the contract on behalf of the Union of India and was dealing with the matter. Therefore, it was necessary that he should also have been arrayed as a party respondent in the matter. Merely, arraying Union of India and sending the notice to the Secretary Ministry of Urban Development would not be effective service as the Secretary to the Govt. of India was not aware of the case nor he was furnished with the particulars thereof. He would also be ignorant of the proceedings before the Arbitrator which culminated in the award. Moreover in the present case as already noted it would be difficult for the Secretary to the Govt. of India to link up the notice of the filing of the award to the matter which was subject matter of the Arbitration proceedings as the notice does not give any details except that the award was rendered by Mr. S.S. Juneja. Since no particulars of the case were given, the office of the Secretary, Govt. of India, Ministry of Urban Development made an endorsement on the notice itself to the effect that full particulars of the case were not given and the notice was received without enclosures. Even a letter was written to the Registrar by the office of the Secretary, Ministry of Urban Development, Govt., of India for seeking particulars of the matter. In these circumstances, therefore, failure to serve a notice of the filing of the award on the Executive Engineer amounts to violation of the principles of natural justice. It is well settled that where the principles of natural justice have been violated in passing an order by the Court, the same can be set aside under the inherent powers. It is also well settled that no person can be prejudiced by the act of the Court. Therefore, when the notice of the filing of the award was not given to the Executive Engineer and no proper notice was given to the Secretary to the Government of India. Ministry of Urban Development, the time for filing the objections did not commence and could not have therefore, expired. In such an event the Court will have inherent jurisdiction to set aside the ex parte decree."

7. Reliance was also placed, and correctly so, by learned counsel appearing for Union of India on a decision of this Court delivered by R.C. Lahoti, J. (as he then was ) in B.P. Sharma Vs. Union of India, in which, again in almost identical circumstances, the following observation was made:

"It is well know that the government in the very nature of its functioning, acts through some one, commonly known as officer-in- charge in a particular litigation. In the case at hand, it was the Executive Engineer (Civil) who was the in-charge of the case and was throughout conducting the proceedings before the Arbitrator which had pended for about three years. The covering letter filed by the Arbitration along with the award the record of arbitration proceedings contained details of the contract out of which the disputes and arbitration proceedings had arisen as also a brief indication of arbitration case. The Executive Engineer (Civil) Telecom Civil Division-I, Chanakayapuri, Post Office Building, New Delhi was shown in the covering letter as a party likely to be effected by proceedings or a party interested in the award. Notice of the filing of the award should have been given to the Executive Engineer above said. The notice could have been accompanied by a copy of the covering letter filed by the Arbitrator or else the notice should have given the requisite particulars already stated hereinabove. That having not been done the notice issued on the address of the Secretary, Ministry of Communication did not satisfy the requirement of the notice of the filing of the award. The receiving clerk in the Secretariat was justified in refusing to accept the notice unless it gave particulars of the case or was accompanied by some petition or application to given an idea of the case. In fact the notice tendered to the clerk was not at all a notice of filing of the award."

8. Applying the ratios of those two judgments to the facts of the present case it is my considered opinion that a case has been made out for recalling the orders dated 22.4.1997. It is quite plausible that a confusion had been occasioned because of the difference in the cause title vis-a-vis. the petitioner; as observed above the Claimant in the arbitration proceedings was M/s. R.P. Builders are not Shri R.P. Arora. Learned counsel for the petitioner has stated that the correct manner of describing the petitioner is that which as been adopted in these proceedings. That may be correct; but it would undoubtedly have caused some confusion in the offices of the Union of India. Further more, even if the Respondent No. 2 was the persona designate and, therefore, an appropriate party as a respondent, there was no reason why the concerned official i.e. Executive Engineer, Construction Division II, CPWD, I.P. Bhawan, New Delhi should also not have been im-pleaded as a respondent. Had this been done involuntary mischief which has resulted in the present case even if inadvertently would have been avoided.

9. The Review petition is, therefore, accepted and allowed. The Executive Engineer, Construction Division II, CPWD, I.P. Bhawan, New Delhi is ordered to be included in the Memorandum of Parties as Respondent No. 4. The said Officer shall be deemed to have notice of the filing of the Award effective from today. There shall be no order as to costs.

I.A. 3058/98

10. Since the orders dated 22.4.1997 have been recalled, this application has become infructuous, and is dismissed as such.