Rawla Construction Company vs Military Engineers Services
2005 Latest Caselaw 479 Del

JUDGMENT

T.S. Thakur, J.

1. In suits No. 1622/91 and 2447/91 two separate orders both dated 27th September, 1994 were passed by this court under which the matters in dispute in both the cases were referred to the arbitration of Justice H.L. Anand, a former Judge of this court. Justice Anand could not, it appears, conclude the proceedings on account of his failing health. OMP Nos. 145/02 and 146/02 were, therefore, filed by the petitioner claimant seeking appointment of another arbitrator, the nominated arbitrator having resigned in terms of his letter dated 22nd December, 2001 citing ill-health as a ground for his inability to continue. These applications were eventually disposed of by two separate orders both dated 23rd January, 2003 passed by Manmohan Sarin J. who appointed Mr. V.R. Baish, Director General, CPWD as the sole arbitrator to adjudicate upon the disputes between the parties. Shri Vaish appears to have taken up the assignment and concluded the proceedings and made an Award whereupon the petitioners filed two applications both under Section 14 and 17 of the Arbitration Act, 1940 for a direction to the arbitrator to file his award in the court. These applications ought to have been registered independently but instead of doing so, the Registry appears to have treated them as IAs filed in disposed of OMPs 145/02 and 146/02. When these IAs came up for hearing before Dr. M.K. Sharma J. on 5th April, 2004, His lordship issued notices to the respondents through their counsel, pursuant whereto the respondent Military Engineering Services filed objections to IAs No. 1782/04 and 1783/04 under Section 14(2) and 17 of the 1940 Act in which they also challenged the validity of the Awards made by the Arbitrator and prayed for setting aside the same in so far as claims no. 2,5,6 and 7 were concerned. Objections filed in IA No. 1782/04 alone are however available on record. Objections filed in IA No. 1783/04 are not found on record although a copy thereof was furnished to the petitioner who has filed a reply to the same.

2. Learned counsel for the parties had in the above background argued the matters on the assumption that the Award made by the Arbitrator stands filed and the validity thereof challenged by the party aggrieved of the same. The fact of the matter, however, is that this court has not so far issued any direction to the Arbitrator to file the arbitration award nor have the the original awards in both the cases been so far received from the arbitrator and placed on record. The question of examining the validity of the awards made by the arbitrator would arise only in case the awards are first filed. Since that has not been done by the arbitrator so far, a direction from the court has become necessary. I accordingly direct the arbitrator, Shri V.R. Baish, Director General (Retired), CPWD R/o S-19, Panchsheel Park, New Delhi to file in this court the awards made by him in pursuance to the orders of reference made by this court in OMPs No. 145/02 and 146/02 dated 23rd January, 2003 upon payment by the petitioner of all the charges if any towards his fee and other expenses involved in the filing of the award, in case the same have not already been paid. IA Nos. 1782/04 and 1783/04 are accordingly allowed and disposed of.

3. I must before parting observe that the facts that have come to light in these two cases show that some kind of confusion is prevailing in the Registry. The Registry appears to have entertained an application under Section 14 and 17 of the Arbitration Act as an IA in a disposed of case. It is difficult to appreciate how that could have been done. Once the matter is finally disposed of, there is no question of filing any IA in the same as the court becomes functus officio. Any petition seeking directions in terms of sections 14 and 17 of the Act could and ought to have been registered only as an independent OMP or Arbitration Application and not as an interim application in a matter that stands finally disposed of. The result is that valuable time of the court is lost and even the parties are put to unnecessary expenses and harassment. Be that as it may, it is high time that the Registry takes appropriate steps to avoid repetition of such mistakes in future. Registrar (Judicial) shall do well to issue instructions that any fresh petition filed by a party under the Arbitration Act would be registered either as an OMP or as an AA and not as an IA in a disposed of case. It should also be noted that in cases where directions have been issued to the arbitrator to file the arbitration award, the petition stands finally disposed of as nothing further remains to be done by the court. It is only when the award is received in compliance with the said direction that the same has to be put up for orders before the court who may thereupon issue a notice regarding the filing of the award to the parties concerned in response whereto the parties may file their objections/application for setting aside the same. This is precisely what shall have to be done in the instant case also though belatedly. Since I have disposed of IA No. 1782/04 and 1783/04 by this order finally, nothing further survives to be considered in those IAs. The Registry shall communicate the order passed by this court to the arbitrator and once the awards are filed in obedience to the same, put up the same before the court for appropriate orders regarding issue on notice to the parties about the filing of the award enabling them to file their objections if so advised.