Madhya Pradesh High Court
The State Of Madhya Pradesh vs M/S Uday Pratap Sharma A5 Class ... on 23 November, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 23 rd OF NOVEMBER, 2023
MISC. PETITION No. 2928 of 2022
BETWEEN:-
1. STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY, WATER RESOURCE
DEPARTMENT, VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. CHIEF ENGINEER RAJGHAT CANAL PROJECT
DATIA (MADHYA PRADESH)
3. EXECUTIVE ENGINEER SINDH PROJECT R.B.C.
D I V I S I O N NARWAR, DISTRICT SHIVPURI
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI SOHIT MISHRA- GOVERNMENT ADVOCATE FOR
PETITIONERS/STATE)
AND
M/S UDAY PRATAP SHARMA A5 CLASS CONTRACTOR
THROUGH, ITS PROPRIETOR UDAY PRATAP SHARMA,
S/O SHRI RAM CHANRAN LAL SHARMA, A-46
THATIPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MUNNA LAL SWARNKAR- ADVOCATE FOR RESPONDENT)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition under Article 227 of the Constitution of India is
directed against the order dated 18.03.2021 passed by Arbitration Tribunal in
Reference Case No.50/2014, whereby an application under Section 17-A of
Madhya Pradesh Madhystham Adhikaram Adhiniyam 1983 r/w Order VI Rule
17 of CPC, whereby the petitioners had prayed for amendment in written
statement by adding pleadings in the form of counter claim/set off against the
respondents, was rejected.
Learned counsel for the petitioner/State at the outset submitted that the
order of the Tribunal is based upon the decision of the Arbitration Tribunal in
the matter of Vasu Builders, Bhopal vs. State of M.P. and Ors. reported in
1996 ATLR 326 wherein it was held that in absence of notice of any quantified
amount claimable by way of counter claim given to the contractor the counter
claim directly filed would not be maintainable. It was contended that the
aforesaid judgment was challenged by the State before this Court in Civil
Revision No.1265/1996 and while deciding the same on 17.08.2007 the Division
Bench of this Court has overruled the aforesaid judgment of the Tribunal and
had held that the Tribunal had erred in rejecting the counter claim lodged by the
petitioner merely on the ground of non-service of notice in a specified form by
the Department to the contractor which is not sustainable under the law and it
was further held that in absence of a notice intimating breach of terms of
contract or difference between the parties of which amount can be ascertained
for Rs.50,000/- or more, the counter claim directly lodged before the Tribunal is
competent. Thus, it was submitted that since the order of Tribunal is based
upon an overruled judgment of the Arbitration Tribunal, the same is not
sustainable in the eyes of law.
The aforesaid fact could not be controverted by the counsel for the
respondent and a ground has been raised that even otherwise the counter claim
of the petitioner is barred by limitation as it was preferred beyond the period of
limitation of one year from the date of approval of right to file the counter claim.
In that regard he had placed reliance in the matter of ESSEMM Logistics vs.
DARCL Logistics Ltd. and Anr. reported in AIR 2023 SC 2140, in the
matter of Uttar Pradesh Power Transmission Corporation Ltd. and Anr.
vs. CG Power and Industrial Solutions Ltd and Anr. reported in AIR 2021
SC 2411 and in the matter of Voltas Ltd. vs. Rolta India Ltd. reported in
2014 (4) SCC 516.
After hearing rival contentions this Court finds that the order of the
Arbitration Tribunal since is based upon another judgment of the Arbitration
Tribunal which have been overruled by this Court in the matter of State of M.P.
Vs. Vasu Builders (supra) the same is not sustainable. Thus, this Court without
going into the merits of the matter, deems it fit to relegate the matter back to the
Arbitration Tribunal to consider the application of the petitioner afresh in
accordance with law.
With the aforesaid direction, petition stands allowed and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
shivani
