Delhi High Court
Union Of India Through ... vs Jitco Overseas Ltd. on 31 May, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 31st May, 2016
+ O.M.P. No. 211/2014 & IA No. 24839/2015
UNION OF INDIA THROUGH SR.D.E.E(G) NORTH CENTRAL
RAILWAY ..... Petitioner
Through Mr. Jagjit Singh, Ms. Shipra
Shukla and Mr. Preet
Singh, Advs.
versus
JITCO OVERSEAS LTD. ..... Respondent
Through Mr. Raman Kapur, Sr. Adv.
with Mr. Aviral Tiwari, Adv.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The petitioner has filed the petition under Section 30 read with
Section 33 of the Arbitration and Conciliation Act, 1940 (hereinafter
referred to as the "Act, 1940") against award dated 16th March, 2009
passed by sole Arbitrator Shri Vijay Kanwar in A.A. No.41/2003.
2. On 31st October, 2003 this Court appointed Mr. Vijay Kanwar
as sole Arbitrator to adjudicate upon the disputes between the
parties.
3. The Arbitrator passed an award on 16th March, 2009 by which
out of total 11 claims raised in the arbitration by the respondent
amounting to a total value of Rs.26,63,009/-, he allowed 3 claims of
the respondent amounting to Rs.1,98,169/-.
4. The following claims have been dis-allowed by the Arbitrator
which has been stated herein below:-
Claim No. Amount Amount
Claimed awarded
a. Claim No.1 1,92,900/- Nil Work done but
not measured
and paid by
railways
b. Claim No.2 40,000/- Nil Returning
materials to
railways store
c. Claim No.3 3,57,420/- Nil Claim for
carrying out
maintenance
work for 12
months after
completion.
d. Claim No.5 35,512/- Nil Re-
imbursement of
excise duty
paid.
e. Claim No.7 1,05,920/- Nil Compensation
due to non
payment of
secured
advance.
f. Claim No.8 12,35,001/- Nil Compensation
of losses
incurred by
Jitco due to
delays caused
by railways.
g. Claim No.9 1,00,000/- Nil Illegal
withholding of
bank guarantee
after expiry.
h. Claim 2,50,000/- Nil Cost of
No.11 arbitration and
litigation
5. The petitioner alleged to have filed objections under Section 34
of the Act, 1996 before District Judge, Allahabad on 17 th July, 2009
which was informed when the petitioner appeared in the execution
proceeding. It is the case of the respondent that they were never
served of alleged petition filed under Section 34 of the Act, 1996 in
the Allahabad Court.
6. The respondent thereafter filed petition under Section 14 and
17 of the Act, 1940 in this Court being CS (OS) No. 781/2009 which
by order dated 12th August, 2011 made the award rule of court and a
decree was passed in terms thereof. The petitioner was served in the
aforesaid suits but did not file any objections.
7. The respondent on 23rd July, 2012 filed an execution petition
under Order 21 Rule 11 read with Section 151 CPC being execution
petition No. 269/2012.
8. The petitioner on 27th July, 2013 withdrew the alleged
objections under Section 34 of the Act, 1996 from the District Judge
Court, Allahabad to be filed in this Court.
9. The petitioner filed the present petition under Section 30 and
33 of the Act, 1940 on 8th January, 2014.
10. The petitioner on 19th March, 2014 filed an interim application
being I.A. No.5176/2014 under Order 9 Rule 13 CPC in CS (OS) No.
781/2009 for setting aside the order/decree dated 12 th August, 2011
by which the award was made rule of court and accordingly,
withdraw the present petition under Section 30 and 33 of the Act.
11. On 4th August, 2015 this Court held that the Act, 1996 would
apply to the present proceedings and not the Act, 1940 and
therefore, the application under Order 9 Rule 13 CPC was disposed
of and order dated 12th August, 2011 was set aside. Thus, leaving
the matter to be dealt with under the Act, 1996.
12. Thereafter, the petitioner on 1st December, 2015 filed an
application being I.A. No. 24839/2015 for revival of present petition
in view of the order dated 4th August, 2015. When the present
application came up for hearing, it was pointed out by the
respondent that the present petition, of which revival is being sought
under Section 30 and 33 of the Act, 1940, cannot be revived in view
of the order dated 4th August, 2015, holding the Act, 1996 to be
applicable.
13. Counsel for the petitioner informed this Court on 2nd May,
2016 that the objections under Section 34 of the Act, 1996 was
withdrawn from the Court of the District Judge, Allahabad which
were filed in CS (OS) No. 779/2009 to 782/2009. This Court called
the records of the suits for 27th May, 2016.
14. The files of the suits were sent by the Registry and the alleged
objections under Section 34 of the Act, 1996 stated to have been
filed were not found on the record. The said position is not denied by
the petitioner's counsel.
15. Under these circumstances, it is clear that the alleged
objections under Section 34 of the Act, 1996 stated to have been
filed and withdrawn from the Court of District Judge, Allahabad were
never filed/re-filed in this Court.
16. Thus, the order of revival of present petition being under
Section 30 and 33 of the Act, 1940 dated 4 th August, 2015 is
recalled and the petition as well as I.A.No. 24839/2015 is
dismissed. The petitions being OMP No. 209/2014 to 212/2014,
revival of which is being sought have already been withdrawn on
19th March, 2014 and not maintainable in view of the order dated 4 th
August, 2015 in CS(OS) No. 779/2009 to 782/2009.
17. Consequently, as of today no proceedings challenging the
award is pending in any Court.
18. The respondent is entitled to recover the amount as per the
award.
19. No costs.
(MANMOHAN SINGH)
JUDGE
MAY 31, 2016
