M/S Manish Man Power Agency vs The Commissioner
2025 Latest Caselaw 1977 Kant

Karnataka High Court

M/S Manish Man Power Agency vs The Commissioner on 6 January, 2025

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                                                  COMAP No. 368 of 2024




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 6TH DAY OF JANUARY, 2025

                                       PRESENT
                     THE HON'BLE MR JUSTICE V KAMESWAR RAO
                                          AND
                        THE HON'BLE MR JUSTICE S RACHAIAH
                        COMMERCIAL APPEAL NO. 368 OF 2024
                BETWEEN:

                M/S MANISH MAN POWER AGENCY,
                SHOP NO.10, G-10,
                SHARAY TOWER,
                BESIDES GOVERNMENT PRESS,
                M.S.K. MILL ROAD,
                KALAGURGI-585 103.
                REPRESENTED BY ITS,
                MANAGING PARTNER,
                SRI YALLAPPA B KANDKUR.
                                                            ...APPELLANT
Digitally       (BY SRI. JAYAKIRTHI M C., ADVOCATE)
signed by K G
RENUKAMBA       AND:
Location:
High Court of
Karnataka       1.   THE COMMISSIONER,
                     DEPARTMENT OF REVENUE,
                     SURVERY SETTLEMENT AND LAND RECORDS,
                     K R CIRCLE, BENGALURU-560 001.

                2.   THE JOINT DIRECTOR (ADMINISTRATION),
                     OFFICE OF THE COMMISSIONER,
                     DEPARTMENT OF REVENUE,
                     SETTLEMENT AND LAND RECORDS,
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                                  COMAP No. 368 of 2024




     K.R.CIRCLE,
     BENGALURU-560 001.

3.   THE TECHNICAL ASSISTANT,
     TO THE DEPUTY COMMISSIONER,
     AND THE IN-CHARGE,
     ASSISTANT DIRECTOR OF LAND RECORDS,
     BELLARY DISTRICT, BELLARY-583 101.

4.   THE TECHNICAL ASSISTANT,
     TO THE DEPUTY COMMISSIONER,
     AND THE IN-CHARGE,
     ASSISTANT DIRECTOR OF LAND RECORDS,
     KALABURGI DISTRICT, KALABURGI-585 103.

5.   THE TECHNICAL ASSISTANT,
     TO THE DEPUTY COMMISSIONER,
     AND THE IN-CHARGE,
     ASSISTANT DIRECTOR OF LAND RECORDS,
     RAICHUR DISTRICT,RAICHUR -584 101.

6.   THE TECHNICAL ASSISTANT,
     TO THE DEPUTY COMMISSIONER,
     AND THE IN-CHARGE,
     ASSISTANT DIRECTOR OF LAND RECORDS,
     YADGIR DISTRICT, YADGIR-582 101.
                                       ...RESPONDENTS
(BY SRI. ADITYA VIKRAM BHAT, AGA)

    THIS COMAP/COMMERCIAL APPEAL IS FILED UNDER
SECTION 13(1A) OF THE COMMERCIAL COURTS ACT,
UNDER SECTION 37 OF THE ARBITRATION AND
CONCILIATION ACT, 1996 PRAYING TO CALL FOR THE
RECORDS FROM THE ARBITRATION AND CONCILIATION
CENTRE AT BENGALURU IN A.C. NO. 165 OF 2022 AND TO
CALL FOR THE RECORDS FROM THE COURT OF THE
LXXXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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                                         COMAP No. 368 of 2024




BENGALURU (CCH-88) IN COM. A.P. NO. 119 OF 2022
AND SET ASIDE THE JUDGMENT DATED 05.08.2024
PASSED BY THE LXXXVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-88) IN COM. A.P.
NO. 119 OF 2022 AND RESTORE THE ARBITRAL AWARD
DATED 11.08.2022 PASSED IN A.C. NO. 165 OF 2022 BY
THE ARBITRAL TRIBUNAL AT ARBITRATION AND
CONCILIATION CENTRE AT BENGALURU AND AWARD
COSTS ETC.,

    THIS APPEAL, COMING ON FOR ADMISSION ALONG
WITH IA NO.1/2024 FOR STAY THIS DAY, JUDGMENT WAS
DELIVERED THEREIN AS UNDER:


CORAM:     HON'BLE MR JUSTICE V KAMESWAR RAO
           and
           HON'BLE MR JUSTICE S RACHAIAH



                       ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

This appeal filed under Section 13(1A) of

Commercial Court Act read with Section 37 of the

Arbitration and Conciliation Act, 1996 (in short, 'Act of

1996') lays a challenge to an order dated 05.08.2024

passed by the Court of LXXXVII Additional City Civil and

Sessions Judge, Bengaluru (CCH-88) in Com.AP

No.119/2022, whereby the learned Sessions Judge has

allowed the petition filed by the respondents herein under

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Section 34 of the Act of 1996, and set aside the Arbitral

Award dated 11.08.2022 passed by the learned Arbitrator

in A.C. No.165/2022.

2. The primary reason for the learned Sessions

Judge to set aside the order/award of the learned

Arbitrator was, denial of opportunity to the respondents

herein. Paragraph-11 of the impugned order reads as

under:-

"11. Now, the question that arises before this court is; Whether, the tribunal had given sufficient opportunity to these petitioners to defend their case before the tribunal. If we carefully peruse the minutes of meeting held between 12.05.2022 to 11.08.2022, the arbitration proceedings was concluded within 3 months from the date of 1st meeting on 12.05.2022. Admittedly, the petitioners herein who are the respondents before the tribunal is a Department of Revenue Survey Settlement And Land Records who was suppose to be represented by a Government Pleader. It could also be seen from the minutes of meeting dtd:12.05.2022, 03.06.2022 that, the Government had made all its efforts to appoint a Government Advocate by following the procedures contemplated under law i.e., by obtaining Government Notification from the Head of legal cell and Ex-officio

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Deputy Secretary to Government and the particular order was also placed before the tribunal. If we carefully peruse these minutes of meeting, it could be clearly seen that, the Sole Arbitrator viewed the conduct of the petitioner Department in a very technical manner and no opportunity was given to them to file their objections and counter claim nor an opportunity to cross examine P.W.1. It is well settled principle of law that, in any proceedings though the defendant or respondents did not choose to file their objections or written statement, their right to cross examine the witness examined by the opposite party could not be denied either by the court or by any tribunal as it will amount to injustice. Since the petitioners herein is a Department of Revenue Survey Settlement And Land Records. It is quite obvious that, they will require some more time to search for certain documents to defend their case. No doubt it is true that, no privilege can be given to the Government which is also a defendant or respondent before the tribunal but, at the same time the tribunal ought not to have refused the prayer of officials of the petitioners that, Government pleader cannot appear before the tribunal in view of the ill-health of his father. If we peruse the proceedings held before the tribunal, the award has been passed on the basis of technical grounds i.e., non-filing of objections by the respondents and not cross-examining the P.W.1. At this stage, I would like to rely on the decision reported in; Associate Builders .Vs. Delhi Development Authority, in para 30 of the Judgment Hon'ble

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Apex Court has held "audi alteram partem principle which undoubtedly is a fundamental juristic principle in Indian law is also contained in Sec. 18 of the Act which says that; the parties shall be treated with equality and each party shall be given a full opportunity to present his case. If the present case is perused, in the light of above decision of Hon'ble Apex Court, the arbitrator has observed that, there was no response from the respondents though they were represented by their counsel. This court has observed the manner in which the arbitral award was passed in the absence of respondents. Hence, I hold the award passed by the sole Arbitrator in the above claim petition needs to be set aside. Accordingly, I answer Point No. 1 in the "Affirmative".

3. The submission of the learned counsel for the

appellant is that, the learned Sessions Judge has set aside

the order/award, without liberty, for fresh consideration of

the dispute leaving the appellant remediless against the

claim(s). In other words the learned Sessions Judge

should have referred the matter back to the learned

Arbitrator for fresh determination after giving opportunity

to the respondents herein to put their case.

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4. Mr. Bhat on the other hand would submit that

the learned Sessions Judge has rightly set aside the award

in as much as even if the respondents have not filed

statement of objections, the learned Arbitrator could not

have denied the respondents the right of cross-

examination of witnesses of the appellant to the extent of

claims made before the learned Arbitrator. He also states

that, nothing precluded the appellant to invoke arbitration

clause in the agreement afresh for determination of

dispute inter-se between the parties in accordance with

law.

5. In view of the submission made by Mr. Bhat, the

learned counsel for the appellant would submit that the

appellant shall invoke the arbitration clause in the

agreement between the parties and proceed thereafter in

accordance with law.

6. In view of the said submission, nothing survives

in this appeal. The appeal is disposed of.

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7. At this stage, Mr. Bhat submits that, in terms of

the order passed by the learned Sessions Judge, the

respondents herein had deposited 40% of the awarded

amount before the learned Sessions Judge. If that be so,

the liberty is with the respondents to file appropriate

application for release of the amount, for the consideration

of the learned Sessions Judge.

8. Pending IA No.1/2024 for stay do not survive

for consideration and it stands disposed of.

Sd/-

(V KAMESWAR RAO) JUDGE

Sd/-

(S RACHAIAH) JUDGE

KGR*