Gujarat High Court
Hith Construction Company vs Union Of India Thro' The Executive ... on 13 February, 2023
Bench: A.J.Desai
C/FA/77/2007 ORDER DATED: 13/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 77 of 2007
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HITH CONSTRUCTION COMPANY
Versus
UNION OF INDIA THRO' THE EXECUTIVE ENGINEER & 1 other(s)
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Appearance:
MR KG SUKHWANI(871) for the Appellant(s) No. 1
for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 13/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present appeal under Section 37 of the
Arbitration and Conciliation Act, 1996 (herein after referred to
as "the Act"), the original applicant has challenged the
judgment and order dated 05.08.2006 passed by the learned
Additional District Judge, Vadodara in Civil Misc. Application
No.108 of 2001, by which an application filed by the present
appellant under Section 37 of the Act challenging the legality
and validity of an order rendered in Agreemtn
No.14/TCD/BRD/1995-96 dated 03.05.2001 by the sole
arbitrator came to be dismissed.
2. The appeal came to be admitted vide order dated
09.02.2007.
C/FA/77/2007 ORDER DATED: 13/02/2023
3. The brief facts arising from the record are as under;
3.1 The appellant - original petitioner/applicant was awarded
a contract for construction of 6 type-II, 6 type-III and 1 type -
IV staff quarters at GIDC, Ankleshwar by an Agreement No.14/
TCD/BRD/1995-96 dated 03.05.2001.
3.2 Certain dispute has arisen between the parties and
therefore, sole arbitrator was appointed. Learned arbitrator by
an award dated 03.05.2001 held that the present appellant
would be entitled to Rs.1,08,049/- with simple interest at the
rate of 10%. The said order was challenged before the Court of
learned Additional District Judge, Vadodara being Civil Misc.
Application No.108 of 2001. The learned trial Court having
considered the challenge by the present appellant under Section
34 of the Act and relying upon various decisions by the
Hon'ble Apex Court, dismissed the application. Hence, this
appeal.
4. We have heard learned advocate Mr. Sukhwani for the
appellant and Central Government Standing Counsel Mr. Ankit
Shah for the respondent.
5. Learned advocates have supplied the xerox copy of
documents including award by the arbitrator, which has been
taken on record. Learned advocates have stated that issue
involved in the present appeal is purely a legal question and
has been dealt with by the Hon'ble Apex Court as well as the
division bench of this Court in various cases and requested
that the appeal may be decided on the legal issue and
C/FA/77/2007 ORDER DATED: 13/02/2023
therefore Record and Proceedings are not required to be called
for and therefore, we have not called for the Record and
Proceedings.
6. Learned advocate Mr. Sukhwani has tried to argue the
appeal by submitting that there is misinterpretation of the
terms of contract between the parties by the trial Court as well
as by the learned arbitrator. He has submitted that this Court
as well as the trial Court can examine the contract and can
modify the award or quash and set aside the award passed by
the arbitrator. He, therefore, would submit to allow the
appeal.
7. Learned advocate Mr. Shah has relied upon a decision of
the Hon'ble Apex Court in case of Associate Builders vs. Delhi
Development Corporation reported in 2015 (3) SCC 49 and
would submit that powers under Section 34 of the Act are very
limited, unless the Court finds that award is in conflict with
the public policy and violated the principle of judicial
approach and not in compliance of principle of natural justice
and thus the award is perverse. He would submit that there
are series of judgments delivered by the Hon'ble Apex Court
on same point. He would submit that the division bench of
this Court relying upon a decision of the Hon'ble Apex Court
in case of Associates Builder (supra) has held that there is no
need to interfere with the award unless the Court finds any
perversity as stated herein above. In support of his submission,
he has relied upon a decision of the division bench of this
Court dated 15.10.2019 in case of State of Gujarat vs. M/s. K.
M. Patel passed in First Appeal No.692 of 1990. He has also
C/FA/77/2007 ORDER DATED: 13/02/2023
relied upon series of judgments, however, for the sake of
convenience we have not referred them here, since they all are
on similar issue.
8. We have heard learned advocates appearing for the
respective parties. We have also gone through the award as
well as impugned judgment and order passed by the trial
Court. The only ground raised is interpreting the clauses, more
particularly Clause No. 2. As per the decision of the Hon'ble
Apex Court in case of Associate Builders (supra), which has
been relied upon by the division bench of this Court in case of
M/s. K. M. Patel (supra), we are in the agreement with the
submissions advanced by learned advocate Mr. Shah. Apart
from that as per the Section 34 of the Act even by this Court
for examining the impugned award, similar principle would be
applicable. Hence, we do not find any reason to interfere with
the judgment and award impugned in this appeal. Hence, the
same is dismissed.
9. In view of dismissal of main appeal, Civil Application
does not survive and disposed of accordingly.
(A.J.DESAI, J)
(RAJENDRA M. SAREEN,J)
DRASHTI K. SHUKLA
