Delhi High Court
State Trading Corporation Of ... vs Prestige Food Limited & Ors. on 19 February, 2010
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.483/2007 & CM No.16529/2007
STATE TRADING CORPORATION .....Appellant through
OF INDIA LIMITED Mr. Adarsh B. Dial, Sr. Adv.
with Ms. Sumati Anand, Adv.
versus
PRESTIGE FOOD LIMITED & ORS......Respondent through
Mr. Vikrant Singh, Adv. for
Respondent No.1
% Date of Hearing: February 01, 2010
Date of Decision: February 19, 2010
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported
in the Digest? No
VIKRAMAJIT SEN, J.
1. This Appeal assails the Order of the learned Single Judge
dated 21.2.2007 dismissing Objections under Sections 30 and
33 of the Arbitration Act, 1940 (for short „Act‟) for non-
prosecution. Thereafter, the learned Single Judge has opined
that there is nothing apparent on the face of the Award which
can be objected to; the Award has been made Rule of the Court.
2. In the hearings of the Appeal, a sum of Rupees
12,86,985.70/- has been deposited in the name of the Registrar
of this Court. Since this deposit covered only the principal sum,
the Appellant was permitted to deposit the interest component
within fifteen days, viz., on or before 23.1.2010. As is evident,
the entire decreetal amount in terms of the Award has left the
coffers of the Appellant.
3. On 23.11.2006, the learned Single Judge had disposed of
OMP Nos.82/1993 and 60/1994 between the parties hereto on
the premise that CS(OS) No.1508-A/1998 from which the
present Appeal arises "which go to the root of jurisdiction of the
arbitrator appointed would be decided as raised in the
Objections to the Award". The present matter, which was also
listed on 23.11.2006, was ordered to be listed in the category of
"Finals" in the week commencing 1.1.2007. The Appellant has
asseverated that instead of noting the said date the Clerk of the
counsel for the Appellant had inadvertently merely recorded
that the case would be listed in the category of "Finals". It was
in these circumstances that on 9.1.2007 and 21.2.2007, there
was no appearance for either of the parties before the learned
Single Judge; the matter was, however, dismissed.
4. Learned counsel for the Respondent has contended before
us that an Appeal is not maintainable under the Act, with which
contention we do not agree. As has been noted, the Objections
of the Appellant under Sections 30 and 33 of the Act had been
dismissed. Section 39(1)(vi) of the Act postulates that an Appeal
lies against an Order setting aside or refusing to set aside an
Award. Sub-section(2) thereof, however, stipulates and clarifies
that nothing shall affect or take away any right to appeal to the
Supreme Court.
5. An issue somewhat similar to the present one has been
considered by a Division Bench of this Court in Shivnath Rai
Harnarain India Company -vs- Glencore Grain Rotterdam, 2009
X AD (Delhi) 357, of which one of us (Vikramajit Sen, J.) was a
member. We had also occasion to deliberate and decide a
similar conundrum in FAO(OS) No.122/2006 titled Wee Aar
Constructive Builders -vs- Simplex Concrete Piles (India)
Ltd. decided on 1.2.2010.
6. On the dialectic dictated by this Bench in these two
matters, it may be argued that the dismissal of Objections for
non-prosecution are barred from further challenge before the
Division Bench. However, the impugned Order is a composite
one, inasmuch as it also records that there is nothing apparent
on the face of the Award which can be objected to and/or which
would result in the Court declining to make the Award the Rule
of the Court. In doing so, the action of the learned Single Judge,
in its capacity as the first Appellate Court, tantamounts to
"refusing to set aside the Award" in the language of Section
39(1)(v) of the Act. Furthermore, where objections have been
dismissed for default of appearance or for their non-prosecution,
the position that obtains is the same. The Appeal is, therefore,
maintainable.
7. In the conspectus of the case, we are of the view that the
Appeal deserves to be allowed by setting aside the impugned
Order and remanding the matter to the learned Single Judge to
pass judgment/orders after affording the Appellant one further
and last opportunity to address arguments on the Objections
already filed by it. This shall be subject to payment of costs of
Rupees Twenty Thousand. However, keeping in perspective the
fact that the decreetal amount stands deposited with this Court,
in the event that the Appellant is desirous and is advised to
impart a quietus to the matter at this stage itself by opting not
to press its Objections, these costs shall not be payable.
8. Appeal is allowed in these terms. Pending application
stands disposed of.
( VIKRAMAJIT SEN )
JUDGE
( MANMOHAN SINGH )
February 19, 2010 JUDGE
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