Madras High Court
The Union Of India vs Famectech on 5 February, 2021
S.A..No.1013 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.02.2021
CORAM
THE HONOURABLE MR. JUSTICE T. RAVINDRAN
S.A.No. 1013 of 2008
and
M.P.No.1 of 2008
The Union of India
Rep. by Garrison Engineers
Fort. St. George
Chennai 600 009 ... Appellant
Vs.
1. Famectech
No.17, N.P. Developed Plot
Industrial Estate, Guindy
Chennai 600 097
2. R.S. Kanwar
Superintending Engineers
SOI (Services)
Chief Engineer Chennai Zone
Island Grounds, Chennai 600 009 ... Respondents
Prayer: Second Appeal filed under Section 100 of the Civil Procedure
Code against the Judgment of the learned Appellate authority, the
Principle Judge, City Civil Court at Chennai dated 24.07.2006 made in
Appeal Suit No. 583/05 confirming the judgment and order dated
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S.A..No.1013 of 2008
30.03.1999 passed by the learned III Asst. Judge, City Civil Court,
Chennai in O.S.No.3054/95.
For Appellant : Mr. S. Janarthanam, SPC
For Respondents
For R1 : Mr. P.B. Ramanujam
For R2 : No appearance
JUDGMENT
Challenge in this second appeal is made to the judgment and
decree dated 24.07.2006 passed in Appeal Suit No. 583/05 on the file of
the Principle Judge, City Civil Court, Chennai confirming the judgment
and decree dated 30.03.1999 passed in O.S.No.3054/95 on the file of the
III Assistant Judge, City Civil Court, Chennai .
2. The unsuccessful plaintiff in the courts below is the
appellant in the Second Appeal.
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S.A..No.1013 of 2008
3. The plaintiff has laid the suit against the defendants under
Section 14 of the Indian Arbitration Act, 1940 for directing the sole
Arbitrator, namely, the second defendant to file the award published by
him on 19.10.1994 into the Court and on such production to pass a
decree in favour of the plaintiff and against the first defendant in terms of
the award passed by the second defendant with costs.
4. Shorn of unnecessary particulars, it is seen that the case of
the plaintiff is that the plaintiff had called for tenders from various
contractors for relaying the water supply line at the family quarters in
Nandanam and the lowest tender was submitted by the first defendant
and thereafter, on 10.02.1992, a revised amount of Rs.2,18,945/- for
carrying out the special requirements for the said quarters was submitted
by the first defendant, which was accepted by the plaintiff on 18.03.1992
by way of a letter and when the plaintiff insisted the first defendant for
signing the contract and to receive the work order, the first defendant did
not put its signature nor commenced the work at the site as per the terms
of the contract and despite the forwarding of the work order through
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S.A..No.1013 of 2008
registered post on 21.04.1992, there had been no response from the first
defendant and consequently, the plaintiff was unable to complete the
work and left with no other alternative, gave a final warning to the first
defendant on 28.07.1992 and had accepted the tender of another agency
on 21.11.1992 for Rs.2,64,505/- and the entire work was completed on
23.03.1993 and on account of the abovesaid facts, according to the
plaintiff, it had sustained loss and thus, the first defendant had to
compensate the plaintiff for the breach of the contract by the first
defendant for a sum of Rs.32,689.38 and the first defendant failed to pay
the said amount to the plaintiff. Therefore, according to the plaintiff, it
had appointed a sole arbitrator as per the terms of the contract, namely,
the second defendant and the sole arbitrator had issued a notice to both
the parties and passed the award on 19.10.1994 and even thereafter, the
plaintiff's request to the first defendant to settle the claim did not yield
any positive response from the first defendant and the arbitrator had
signed and published the award for a sum of Rs.32,689.38 without costs
or interest and the plaintiff had received the award published and signed
by the arbitrator on 24.10.1994 at Madras and therefore, the plaintiff's
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S.A..No.1013 of 2008
claim is within the time prescribed under law and hence, the suit against
the first defendant is filed.
5. It is seen that the arbitrator, who had been arrayed as the
second defendant in the suit had remained exparte both in the suit and in
the first appeal.
6. The first defendant resisted the plaintiff's suit contending
that the plaintiff's suit is hopelessly barred by limitation and the arbitrator
is none other than the officer of the plaintiff who is stated to have made
the award and though the award was claimed to be published after giving
notice to the parties on 19.10.1994 and from the said date of the notice,
the plaintiff, as per law, is required to file the award of the arbitrator
within 30 days as per Article 119 of the Arbitration Act. The suit having
been filed on 23.11.1994 beyond 30 days is clearly barred by limitation.
Further it is also put forth by the first defendant that the claim of the
plaintiff that he had received the award on 24.10.1994 is incorrect as in
the plaint the date of receipt of the award has been originally mentioned
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S.A..No.1013 of 2008
as 21.10.1994 in several places and also the date had been corrected
from 21.10.1994 to 24.10.1994 solely for the purpose of showing the
limitation period as if the suit is filed within the time allowed by law
from the date of receipt of the award and therefore, the first defendant
contended that the plaintiff's suit is barred by limitation and liable to be
dismissed.
7. It is found that neither the plaintiff nor the first defendant
had adduced oral and documentary evidence in support of their case and
hence the courts below had proceeded to dispose of the case laid by the
plaintiff based on the documents produced along with the plaint as well
as the pleas put forth by the parties and resultantly, it is noted that both
the trial court as well as the first appellate court has held that the
plaintiff's suit is clearly barred by limitation. Impugning the judgment
and decree of the courts below, the plaintiff has preferred the second
appeal.
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8. The plaintiff has laid the suit in the form of Original Petition
directing the second defendant, the arbitrator, to file the award published
on 19.10.1994,which, according to the plaintiff, was passed in respect of
the dispute arising between the plaintiff and the first defendant. As per
the pleas put forth by the plaintiff in the plaint though the tender of the
first defendant had been originally accepted, it is noted that the revised
tender had been submitted by the first defendant which was also accepted
by the plaintiff. However, the plaint clearly avers that the first defendant
did not sign the contract nor received the work order to undertake the
work specified by the plaintiff in the tender. That apart, the first
defendant had also failed to proceed with the work despite the final
warning given by the plaintiff and hence, the plaintiff had been
necessitated to hand over the work under question to the third party.
Therefore, the plaintiff has to establish clearly that there has been a clear
concluded contract between the plaintiff and the first defendant for the
specified work mentioned by the plaintiff in the tender. If there is no
contract, as such, between the parties nothing would flow from the
alleged passing of the award by the arbitrator, namely, the second
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S.A..No.1013 of 2008
defendant.
9. When the parties had not endeavoured to adduce evidence in
respect of their respective claims, as noted by the courts below, there is
nil material on the part of the plaintiff to establish that a concluded
contract had been entered into between the plaintiff and first defendant
and that there is a clause contained in the contract for appointing an
arbitrator in the case of any dispute arising out the said contract. When it
is admitted that the first defendant had not even signed the contract sent
to him, therefore, it is seen that as concluded by the courts below, the
appointment of an arbitrator on the part of the plaintiff to resolve the
dispute between the parties is found to be not legally sustainable.
10. Even the award copy has not been, as such, exhibited in the
court. Be that as it may, when according to the plaintiff the arbitrator has
signed the award on 19.10.1994 and the same had been received by the
plaintiff on 21.10.1994, it is not made clear by the plaintiff as to why the
date of receipt of the award mentioned as 21.10.1994 in the plaint in all
the places had been corrected as 24.10.1994 wherever it is mentioned and
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S.A..No.1013 of 2008
accordingly, according to the first defendant, the plaintiff had not
actually received the award on 24.10.1994 as claimed by it and by way of
correcting the date, as above pointed out, had endeavoured to bring its
suit within the limitation period by committing fraud upon the court and
with reference to the abovesaid factors, no proper explanation is forth
coming on the part of the plaintiff.
11. When the first defendant had denied the receipt of the
award by the plaintiff from the arbitrator, it is the duty of the plaintiff to
produce the copy of the award delivered to him and the date of receipt of
the award was only on 24.10.1994 as mentioned in the plaint and thereby
establish that the plaintiff's suit is in time. As held by the courts below,
the plaintiff has not chosen to examine any person to safely hold that the
award had been received by the plaintiff's office on 24.10.1994 only.
The plaintiff being the public office ought to have maintained the
despatch and receipt of tapal received in the office. The said register
should have been produced to show that the award was received by the
plaintiff only on 24.10.1994 as per the correction made in the plaint.
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Therefore, the courts below are found to be justified in drawing adverse
inference against the plaintiff for failing to place the best evidence to
show that the award of the arbitrator had been really received by the
plaintiff only on 24.10.1994.
12. In the light of the abovesaid discussions, as rightly
contended by the first defendant and as rightly concluded by the courts
below, when there is no material on the part of the plaintiff to determine
that it had received the award only on 24.10.1994, the courts below are
justified in assuming that the notice of the award was given to the parties
on 19.10.1994 i.e., the date of the award and thereafter only it has been
published by the arbitrator and so calculated, it is found that particularly
considering the plea of limitation as provided under Article 119 of the
Limitation Act, the time limit being given is only 30 days and by the
abovesaid calculation, the period of limitation would expire by
20.11.1994 and even assuming that the award, as originally stated in the
plaint i.e. 21.10.1994 is taken into consideration and the limitation period
is calculated, the limitation for the suit would expire by 22.11.1994 on
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S.A..No.1013 of 2008
factual matrix and when the plaintiff is found to have presented the suit
before the Court only on 23.11.1994 and when there is no acceptable
cause put forth by the plaintiff as to how it would be entitled to seek the
exemption as provided under Order 7 Rule 6 CPC, in all, the courts
below have rightly concluded that the plaintiff's suit is hopelessly barred
by limitation. As above pointed out, the plaintiff having failed to
establish that there is a concluded contract between the plaintiff and the
first defendant and the said contract had been reduced into writing and
the contract contains the clause for appointment of an arbitrator for
deciding the dispute between the parties, above all, in the light of the
abovesaid discussions, when the plaintiff's suit is not established to have
been laid within the time laid by the law, the courts below are justified in
declining the reliefs sought for in the suit. The reasonings and the
conclusions of the courts below for dismissing the plaintiff's suit for the
reasons including the point of limitation when found to be based on
proper appreciation of the materials available on record and on the point
of law and when no valid reason has been projected by the plaintiff for
warranting any interference to the same, it is seen that no substantial
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question of law is involved in the second appeal.
13. For the reasons aforestated, the judgment and decree
Judgment and decree dated 24.07.2006 passed in Appeal Suit No. 583/05
on the file of the Principle Judge, City Civil Court, Chennai, confirming
the judgment and decree dated 30.03.1999 passed in O.S.No.3054/95 on
the file of the III Assistant Judge, City Civil Court, Chennai, are
confirmed. Resultantly, the second appeal is dismissed with costs.
Consequently, connected miscellaneous petition is closed.
05.02.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Principle Judge, City Civil Court, Chennai
2. The the III Assistant Judge, City Civil Court, Chennai,
3. The Section Officer, VR Section, High Court, Madras
4. Famectech
No.17, N.P. Developed Plot
Industrial Estate, Guindy
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S.A..No.1013 of 2008
Chennai 600 097
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S.A..No.1013 of 2008
T. RAVINDRAN, J.
bga
S.A.No.1013 of 2008
05.02.2021
https://www.mhc.tn.gov.in/judis/
