Himachal Pradesh High Court

Date Of Decision: 13Th October ... vs Unknown on 13 October, 2023

Bench: Rakesh Kainthla

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Arbitration Case No. 42 of 2020 Date of Decision: 13th October 2023

The Executive Engineer, HPPWD Division Kasauli, District Solan, H.P.

....Objector

Versus Mohan Singh Thakur ....Non-Objector/Respondent

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes

For the Objector : Mr. R.P.Singh, Deputy Advocate

General.

For the Non-objector/ : Mr. Tarunjeet Singh, Advocate. Respondent

Rakesh Kainthla,Judge (Oral).

These objections have been filed against the award

passed by the learned Arbitrator, dated 11.05.2020. (Parties shall

hereinafter be referred to in the same manner as they were

arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present

objections are that the work of M/T on Lohanji Mari Ka Ghat Road

in Km 0/0 to 13/200 (SH: Formation Deficiency in Km 0/0 to 5/0,

retaining structure, cross-drainage, sub-base, WBM Gr-1, Base

course Gr-II & GR-III, Premix Carpet, PCC Parapets, Drain and

dumping site in km 0/0 to 13/200 under NABARD RIDF-XVIII),

Agreement No. .67/2013-14 was awarded to the claimant, vide

Award letter dated 14.08.2013, for an amount of ₹ 4,01,35,892/-

(Four Crore One Lac Thirty-Five Thousand Eight Hundred Ninety

Two Only). The time for completion was 12 (Twelve) months to be

r to calculated from the fifteenth day after the issuance of the Award

letter dated 14.08.2013. Thus, the date of completion of the

awarded work was 28.08.2014. The claimant made all the

arrangements for labour, machinery and other infrastructure

required for the execution of the work. However, he faced

problems of hindrance free-site for the timely completion of work

and brought the problems to the notice of the departmental

authorities, vide letter dated 28.08.2013. The materials i.e.

cement, explosive, and bitumen were to be issued by the

department, but the department failed to issue sufficient quantity

of the materials to complete the work. The claimant brought this

fact to the notice of the department vide a letter dated 04.02.2014.

He again wrote a letter dated 12.02.2014, explaining the

difficulties faced by him due to the non-availability of the site and

sufficient quantity of materials. However, no action was taken by

the department. No payment was made to him for the work

executed by him. He again wrote letters dated 18.03.2014, and

02.04.2014, regarding the problems being faced by him. The

respondent did not take any action on the letters written by the

claimant. The work could not be completed in time due to the

non-availability of the site and the materials. The claimant wrote

a letter dated 15.07.2014, mentioning all these facts. The labour

and machinery of the claimant were kept idle and he brought this

fact to the notice of the department, vide letters dated 05.11.2014

and 13.11.2014. The claimant applied for an extension of time vide

letter dated 06.01.2015, mentioning the reasons due to which the

work could not be completed within time. He wrote a letter dated

05.05.2015, asking the department to provide a clear site.

However, no action was taken despite extending the time w.e.f.

01.07.2015 till 30.11.2015; however, the site was not made

available. The claimant wrote a letter to the department to close

the work on 1.10.2015, to avoid unnecessary litigation and the

make payment for the work done by him. However, no action was

taken on this letter. The work could not be completed within two

years. The claimant again applied for an extension of time, which

was granted but the site was not made available. Hence, claimant

sought the arbitration.

3. The Chief Engineer (South Zone), HPPWD-Shimla-2

appointed the Superintendent Engineer, 3rd Circle, HPPWD, Solan,

H.P as Sole Arbitrator on 24.01.2017. The learned Arbitrator

entered upon the reference on 16.02.2017 and thereafter the

claimant filed a claim petition before the learned Arbitrator.

The department filed a reply admitting that the work

was awarded to the claimant. It was asserted that the work

consisted of reciprocal promises as per which the claimant was to

execute the work on the site made available by the department.

More than 85% hindrance-free site was made available to the

claimant. The department discharged all the reciprocal promises,

regarding the payment of the work executed by the claimant, and

the issuance of the material as per the actual requirement. The

contractor was to adhere to the timeline provided in the

agreement; however, he failed to do so. The Department granted

the first extension w.e.f. 08.08.2024 till 30.6.2015, the second

extension w.e.f 10.07.2015 till 30.11.2015 and the third extension

w.e.f 21.07.2016 till 31.07.2016. The claimant was in default and is

not entitled to the claim amount. The variation/increase/decrease

is covered under Clause 10cc of the agreement. The statement of

the claim was denied on merits. The counterclaim was preferred

by the department for the recovery of various amounts to the tune

of ₹12,72,425/- plus interest.

5. The parties filed the documents.

6. The learned Arbitrator held that the extension was

granted to the claimant three times, out of which two were at the

instance of the claimant and one was unilateral. The extension

was granted with the condition that no claim shall be paid for the

period of extension. The matter was amicably settled between the

parties, but this settlement was never implemented by the

Executive Engineer. The work was held up due to land disputes at

10 places; therefore, it was not possible to carry out the balance

work. The claimant established that a hindrance-free site was

never made available to him and he is entitled to close the work.

The claimant was entitled to ₹38,41,468/- for extra work. The

delay was attributable to the department as the work could not be

executed due to hindrances and the objections of the local people.

The claimant was held entitled to ₹61,027/- on this account. The

claimant had executed 95% of the work and the remaining work

was within the deviation limit, therefore, he was not entitled to

any payment on account of loss and profit due to unexecuted

work. He failed to establish the claim for the loss of productivity

by any evidence. No claim was payable for mental harassment.

The claimant was entitled to a refund of ₹6,08, 263/-. Simple

interest @8% per annum from the date of release of performance

security and post pendent lite interest @ 18% were awarded. An

amount of ₹2,02,500/- was awarded in favour of the department

regarding the recovery of the material consumed by the

contractor. The cost of the arbitration was fixed at₹ 2,00,000/-.

7. Feeling aggrieved and dissatisfied with the Award

passed by the learned Arbitrator, The Executive Engineer, has

filed the present objection petition, asserting that the award is

against the public policy of India. The learned Arbitrator has

travelled beyond the scope of the Contract. The award is

unreasonable. The learned Arbitrator has failed to follow the

procedure as prescribed in Arbitrator & Conciliation Act, 1996. The

learned Arbitrator misconstrued and misinterpreted the contract.

The claim of price escalation was beyond the scope of the

jurisdiction of the learned Arbitrator. It was not specified as to

how ₹61,027/-, was calculated. No interest is payable on the

security amount as the security amount was never claimed by the

claimant. The learned Arbitrator gave undue, unreasonable and

unwarranted benefits to the Contractor. Therefore, it was prayed

that this petition be allowed and the award passed by the learned

Arbitrator be set aside.


    making
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The objection petition was opposed by filing a reply,

preliminary submissions, regarding lack of

maintainability, the petition being bad for non-joinder of State of

H.P., the objection petition having not been verified as per Rules

of the Court, and the petitioner being estopped from maintaining

the present objection petition. The contents of the objection

petition were denied on merits. It was asserted that the delay in

the execution of the work was attributable to the department. The

claimant was unable to complete the work within the stipulated

time due to the default of the department. The learned Arbitral

Tribunal went through the documents and the contentions raised

before him. The award is justified. The learned Arbitrator had

acted as per the contract and the Arbitration & Conciliation Act.

The procedure was finalized by the parties and the department

never raised any objection. Adequate opportunities were provided

to both the parties. The justification was provided for awarding

the various amounts, therefore, it was prayed that the present

petition be dismissed.

9. I have heard Mr. R.P.Singh, learned Deputy Advocate

General for the objector/department and Mr. Tarunjeet Singh

10. to Bhogal, learned counsel for the respondent/non-objector.

Mr. R.P.Singh, learned Deputy Advocate General has

taken a technical objection that the Award was to be passed within

one year from the date of entering into the arbitration; however,

there was a delay of 5 days in passing the award. The Award is a

nullity. He further submitted that the Award is against the public

policy of India as the learned Arbitrator had adjudicated upon the

excepted matter. Therefore, he prayed that the Award be set aside.

11. Mr. Tarunjeet Singh Bhogal, learned Counsel for the

non-objector/claimant has raised two technical objections that

the petition is bad in the absence of the State of H.P. and the

objection petition is not verified by the Executive Engineer, by

whom it was purported to be filed before this Court. He supported

the Award on merits and submitted that the jurisdiction of this

Court to interfere with the Award on merits is quite limited. The

objection petition does not lie within the scope of the interference

laid down in various judgments; therefore, he prayed that the

present objection petition be dismissed.

12. I have given considerable thought to the rival

submissions at the bar and have gone through the records

carefully.

13. to The present petition has been filed by the Executive

Engineer, HPPWD, Division Kasauli, District Solan, H.P., who was

arrayed as a party before the learned Arbitrator. The claimant

himself had not arrayed the State of H.P. as a party before the

learned Arbitrator and the objection could not have been filed by

the State being a third party. Hence, the objection that the present

objection petition is bad for non-joinder of the State, is not

acceptable.

14. The Executive Engineer, was arrayed as a party before

the learned Arbitrator; however, the objection petition has been

signed by the Superintending Engineer, 3 rd Circle, HPPWD, Solan,

H.P. An affidavit has also been filed in support of the petition by

the Superintending Engineer, 3rd Circle Solan, H.P. It was

submitted that the objection petition is not properly signed.

15. Order 6 Rule 14 of CPC, provides that every pleading

has to be signed by the party and his pleader, if any, provided that

where a party pleading is, by reason of absence or for other good

cause unable to sign the pleading, it may be signed by any person

duly authorized by him to sign the same or to sue or defend on his

behalf. Therefore, it is apparent that as per Order 6 Rule 14 of CPC

the party has to sign the pleadings and it is only in case of

availability of good cause that some other person authorised by

the party may sign on its behalf.

16. Similarly, Order 6 Rule 15 of CPC, provides that every

pleading shall be verified at the foot by the party or by one of the

parties pleading or by some other person proved to the

satisfaction of the Court to be acquainted with the facts of the

case. Order 6 Rule 15(4) of CPC also provides that a person

verifying the pleading shall also furnish an affidavit in support of

his pleadings. Thus, an obligation has been cast upon the party

not only to sign but also to verify the pleading and support it by an

affidavit.

17. In the present case, the Executive Engineer, HPPWD,

Division Kasauli, District Solan, H.P., who was a party before the

learned Arbitrator never authorized Superintending Engineer,

3rdCircle, HPPWD, Solan, H.P. to sign the pleadings on his behalf.

It is submitted by Mr. R.P.Singh, learned Deputy Advocate

General, that the State Government has issued a Notification, as

per which the Superintending Engineer is competent to sign the

pleading filed before the High Court. It is difficult to see how a

Notification issued by the State Government will apply to a

proceeding in which the State Government is not a party. The

State Government can nominate the persons, who will sign the

pleadings on his behalf as per Order of 28 of CPC, but cannot

regulate the signing of the pleading where it is not a party.

Admittedly, the State Government is not a party in the present

proceedings; therefore, the Notification issued by the State

Government, authorizing a particular person to sign the pleading,

will not apply in the present case.

18. The effect of violation of provisions of Order 6 Rules

14 and 15 of CPC has been considered by the various Courts from

time to time. It was laid down by the Delhi High Court in Susanne

Lenatz v. International Hotels Ltd., 2005 SCC OnLine Del 1269, that

the defect in the verification or signing is merely an irregularity

and will not be fatal. It was observed:

" This position is well settled and a reference may be made to some decisions on this line. The decisions

being:

1. Mohinimohun Das v. Bungsi Buddan Saha Das, (1890) ILR 17 Cal 580 (PC)

2. M.C.S. Rajan & Co. v. National Nail Industries AIR 1976

Madras 151.

3. Dahyabhai Girdhardas v. Bobaji Dahyaji Kotwal AIR 1953 Bombay 28.

rRajesh Wadhwa v. Dr (Mrs) Sushma Govil AIR 1989 Delhi

5. Nadella Satyanarayana v. Yamanoori Venkata Subbiah AIR 1957 Andhra Pradesh 172.

In view of the settled legal position that the defect

of non-signing of the plaint is a mere irregularity and not an illegality, the suit cannot be dismissed on this

ground."

19. Gauhati High Court also held similarly in Kailash vs

Hiralal Dey, AIR 1994 Gau 12, that a mere defect in the signing and

verification is not sufficient to set aside the judgment and decree

as it is only a procedural defect and does not affect the merits of

the case. It was observed:

"14. Section 99 is very clear that no decree shall be reversed or substantially varied on the ground of non-joinder of parties

or causes of action or any error, defect or irregularity in any proceeding not affecting the merit of the case or jurisdiction of the court. Although according to Mr. Khetri, this section does not include signing and verification of the plaint, I am of

the opinion that the expression "any error, defect or

irregularity in any proceeding in the suit" will also include signing and verification of the plaint as laid down in rules 14 & 15 of order 6 CPC. In this connection,the attention of this

court has been drawn by Mr. Sarma to a decision of the Punjab & Haryana High Court in Smt. Mitkhtiar Kaur v. Smt. Ghulab Kaur, AIR 1977 Punjab & Haryana 257. In that case, the plaint and the verification were not signed by the plaintiff, but by his lawyer. But the plaintiff in the witness box supported all the

averments made in the plaint. The court observed that the counsel for the plaintiff was presumed to be acquainted with the facts of the case. So the verification of the plaint made by him can be accepted. Moreover, it is a defect which may only

amount to an irregularity and can be ignored for rejecting the

plaint. It was also held that the legal position is that want of verification has not the effect of making the plaint void and it merely amounts to an irregularity. Regarding the signing of the pleadings, although the High Court recorded that

decisions are not uniform, the prominent view is that irregularity in the signature of a plaint is a mere defect of procedure and does not affect the jurisdiction of the Court.

15. I am in respectful agreement with the above law laid down

by the Punjab & Haryana High Court. In my view, we have come to a stage in our jurisprudence where we should not be

tied down with procedural technicalities. But we should try to do substantial justice to the parties. In the case in hand, it would be unfair and unjust to reject the plaint merely on the

ground that the plaint was not properly signed and/or verified as the plaintiff himself came to the witness box and made out the case in the plaint.

16. It may also be added here that Mr Sarma has placed reliance on two decisions, namely, Dahyabhai v. Bobaji Dahyaji Kotwal, A.I.R. 1953 Bombay 28 and Bhikaji Keshao Joshi v. Brijalal Nandlal Biyani, AIR 1955 SC 610. In Dahyabhai (supra) Hon'ble Chief Justice Changla of Bombay High Court (as his Lordship then was) held that if a plaint is

not signed by a properly authorised person, prayer can be allowed for signing a plaint by the plaintiff even after limitation. In Bhikaji Keshao (supra), the Apex court while considering Section 83(1) of the Representation of the People

Act, 1951 vis-a-vis Order 6 Rule 15 C.P.C. held that even if

there was the absence of date in the verification of the election petition, it would be a good ground for dismissing the application and normally the petitioner should be allowed to

remove the lacuna by adding a supplementary verification. Though these two decisions are not directly on the point, I am only referring to these two decisions to show that provisions of Order 6 Rule 15 C.P.C. are not mandatory, but directory in nature. I, therefore, hold that order 6 rule 15 C.P.C. is not

mandatory and any defeat can be cured at any stage."

20. Therefore, the defects in signing and verification are

not fatal and the objection petition cannot be dismissed on the

ground that the same is not signed and verified by the appropriate

person.

21. Mr. R.P.Singh, learned Deputy Advocate, General

submitted that in the present case learned Arbitrator has entered

into a reference on 06.05.2019, as per para 2 of the Award,

whereas, he has passed the Award on 11.05.2020, beyond the

period of one year. Section29A of the Arbitration and Conciliation

Act, as it existed on the relevant date provides the time limit for

the arbitral award. It reads as under:

"(1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference.

Explanation.--For the purpose of this subsection, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their

.

appointment.

xxxxxx (4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-

section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Xxxxx"

22.

It is apparent from the bare perusal of the provision

that the mandate of the Arbitrator stands terminated if the award

is not made within 12 months from the date, he enters upon the

reference.

23. It was laid down by Allahabad High Court in Hari @

Hari Lal & others vs Union of India & others, in Civil Writ Petition No.

7734 of 2020 decided on 06.03.2020, that the learned Arbitrator has

to make the award within 12 months from the date enters upon

the reference after which his mandate terminates and he has no

jurisdiction to pronounce the award. A similar view was taken by

the Calcutta High Court in Rohan Builders (India) (P) Ltd. v. Berger

Paints India Ltd., 2023 SCC OnLine Cal 2645, wherein it was

observed:

23. Section 29-A changed all that and brought in not only strict timelimits for the making of the award but also the concept of termination of the mandate if the award is not made within the prescribed statutory timelines.

.

xxxxxx

31. The sub-text would therefore be that the mandate of the arbitral tribunal to make the award within 12 months after

completion of pleadings [under section 29-A(1)] or within the extended time of 6 months [under section 29-A(3)] would stand terminated once the timelines are exhausted and the mandate would not remain in suspension till filing of the application for extension of the mandate under section 29-