Delhi High Court
Central Dairy Farm & Anr vs M/S Packraft India Pvt Ltd on 29 October, 2015
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 29th October, 2015.
+ EFA(OS) No. 27/2015 & CM Nos 14105-06/2015
CENTRAL DAIRY FARM & ANR ..... Appellants
Through : Mr. S.R. Gupta, Mr. R.K. Porwal,
Advocates.
versus
M/S PACKRAFT INDIA PVT LTD ..... Respondent
Through : Mr. Rajiv Bahl, Ms. Usha Mann,
Advocates.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
GITA MITTAL, J (ORAL)
CM No. 24982/2015 in EFA(OS) 27/2015
1. This application has been filed under Section 10 of the Delhi High
Court Act read with Order 43 Rule 1, Order 21 Rule 58 and Section 151 of
CPC requiring the court to take cognizance of certain alleged "frauds"
played by the respondent in obtaining the impugned award.
2. It is pointed out by Mr. Rajiv Bahl, learned counsel appearing for the
respondent that the allegations made in this application were the subject
matter of the execution application and objections under Sections 16, 30, 34
of the Arbitration Act filed by the Judgment Debtor along with the
application under Section 5 of the Limitation Act, which stand rejected.
3. It is an admitted position that the objections of the appellant to the
arbitral award dated 30th November, 2006 were dismissed on 21st August,
2009 by the learned Single Judge. The challenge by the appellant to the
same stands rejected by the Supreme Court of India by an order dated 23 rd
May, 2012 while its review was dismissed on 12th July, 2012.
4. Perusal of the application would show that the appellant is now
attempting to urge the factual objections relating to the merits of the
arbitration proceedings. The appellant has now come out once again with a
plea that he be permitted to re-agitate the merits of these very objections by
way of this application. The same is legally impermissible. The application
is hereby dismissed with costs which are quantified at Rs. 10,000/- (Rupees
Ten Thousands) payable to the Delhi High Court Legal Services Committee
within a period of four weeks from today.
EFA(OS) 27/2015 & CM Nos 14105-06/2015
1. The scanned record of EFA(OS) No. 41/2009 has been placed before
us.
2. We have heard the learned counsels for the parties at length and to the
extent necessary, the essential facts giving rise to the filing of the instant
appeal are noted hereunder.
3. The appellant assails the order dated 19th May, 2015 passed by the
learned Single Judge rejecting the EA No. 350/2009 being objections under
Section 47 read with Section 151 of the CPC. The appellant is aggrieved by
the rejection of his objection that the District Courts at Delhi has no
jurisdiction to pass orders on an application filed under Section 11 of the
Arbitration and Conciliation Act which had been filed by the respondent
herein and that the appointment of sole arbitrator on such an application was
illegal for the reason that the contract having been entered and executed at
Aligarh and the decree holder having agreed to the arbitration proceedings at
Aligarh, the court at Aligarh only has the jurisdiction to entertain the matter
and Delhi court has no jurisdiction to entertain the execution petition and the
same deserved to be dismissed.
4. Our attention is drawn to the consideration by the learned Single
Judge and reliance placed on a pronouncement of Supreme Court reported
as 2005 8 SCC 618 entitled S.B.P. and Co. v. Patel Engineering Limited
and Another . One of the objections which was pressed in the judgment was
that the Additional District Judge has no jurisdiction to appoint the sole
arbitrator. The Supreme Court of India had clarified the following legal
position in S.B.P. and Co. (supra) which reads thus:-
"Where District Judges had been designated
by the Chief Justice of the High Court under Section
11(6) of the Act, the appointment orders thus far
made by them will be treated as valid; but applications
if any pending before them as on this date will stand
transferred, to be dealt with by the Chief Justice of the
concerned High Court or a Judge of that Court
designated by the Chief Justice."
5. It is, therefore, clear that as far as the appointments of arbitrator made
by District Judges prior to the pronouncement in S.B.P. and Co. (supra)
were concerned, they have to be treated as valid and legal. In the instant
case, the order by the District Judge, Delhi appointing the arbitrator was
dated 4th October, 2001 i.e. well before the pronouncement in S.B.P. and
Co. (supra) and hence the same has to be treated as legal and valid.
6. Learned counsel for the respondent has also placed Notification No.
16/ Rules dated 2nd February, 1996 of this court whereby, the Chief Justice
of this court, in exercise of the power conferred by sub-section (10) of
Section 11 of the Arbitration and Conciliation Ordinance, 1996, had
authorized the District Judge /Additional District Judge for appointment of
Arbitrators under Clause 3 (i) (b), which reads thus:-
"..... (b) The District Judge/Additional District
Judge where the value of the subject matter does not
exceed Rs. 5 lakhs and ..."
7. In view of above, the Additional District Judge stood designated by
the Chief Justice to appoint arbitrator. Therefore, the appointment of the
arbitrator by the learned Additional District Judge in the present case by the
order dated 4th October, 2001 cannot be faulted with. So far as other
objections raised in the present appeal are concerned, we find that the
appellant has not raised any such objection for a period of 14 years.
8. The award dated 30th November, 2006 was received by the appellant
on 4th December, 2006 whereby the appellant was directed to pay the
awarded amount within a period of two weeks. On account of failure to pay,
the Execution Petition No. 195/2007 was filed in this court for recovery of
the awarded amount.
9. The appellant/judgment debtor filed objections under Section 47 of
the CPC in the Execution Application while objections to the arbitral award
under Sections 16, 30 & 34 of the Arbitration Act along with an application
under Section 5 of the Limitation Act was separately filed. The objections
and applications were dismissed by order passed on 21st August, 2009.
10. The dismissal of the execution petition by order 21st August, 2009
was challenged before the Division Bench of this court by filing EFA(OS)
41/2009 wherein by an order dated 9th February, 2010, a conditional stay
was granted on the execution proceedings subject to the decretal amount
being deposited in the court.
11. In the execution proceedings by an order dated 18th December, 2009,
the appellant was directed to deposit an amount of Rs.32,99,686.39 paise
within a period of six weeks. By an order dated 18 th February, 2010, in the
execution proceedings, the above directions were reiterated and the
appellant/judgment debtor was granted fifteen days' time to deposit the
decretal amount. The appellant/judgment debtor deposited the amount of Rs.
32,99,686.39 paise as part payment in lieu of decretal amount on 24 th
February, 2010. No amount has been deposited by the appellant thereafter.
12. EFA (OS) No. 41/2009 was dismissed on 8th November, 2011 and
orders for release of the deposited amount to the respondents were passed.
The appellant assailed the order dated 8th November, 2011 by way of a
special leave petition which was dismissed on 23rd March, 2012 by the
Supreme Court of India. The review against order dated 23rd March, 2012
was also rejected on 12th July, 2012.
13. In the meantime the EA No. 333/2013 was filed by the
respondent/decree holder on 14th May, 2007 for recovery of the amount
w.e.f. 1st October, 2007 till date. It is submitted that the awarded amounts
have not been paid by the appellant till date and instead it has resorted to
tactics of filing one application after another.
14. The dismissal of the EA No. 350/2009 on 19th May, 2015 as noted
above has been assailed before us. The learned Single Judge has carefully
considered and dealt with all the contentions pressed by the appellant at
great length. Despite the submission made on 9th February, 2010 in
EFA(OS) No. 41/2009, the balance amount has not been paid by the
appellant.
15. For all the above noted reasons, we find no merit in this appeal.
Accordingly, the appeal and the application are dismissed.
GITA MITTAL
(JUDGE)
I.S.MEHTA
(JUDGE)
OCTOBER 29, 2015/j
