Orissa High Court
Union Of India And Others vs Yashpal Choptra & Co. on 4 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.31 of 2012
(Through hybrid mode)
Union of India and others .... Appellants
Mr. P.K. Parhi, ASG
Mr. D.R. Bhokta, CGC
-versus-
Yashpal Choptra & Co., Contractor .... Respondent
Mr. Ajit Ku. Hota, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
04.05.2022
Order No.
19. 1. Mr. Parhi, learned advocate, Assistant Solicitor General
appears on behalf of appellants and submits, impugned
judgment dated 9th May, 2012 is required to be interfered with
in appeal. He submits, it is true the arbitrator was appointed on
request made under sub-section (6) in section 11, Arbitration
and Conciliation Act, 1996 but his client invoked section 16 to
challenge the appointment, in the reference. On being
unsuccessful, his client thereafter contested the claims. Award
dated 17th February, 2010 was made.
2. His clients being aggrieved by the award had
challenged it before the District Judge. By impugned judgment,
learned Court below held that challenge to the award was not
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maintainable, since the order of appointment of arbitrator under
section 11(6) was a judicial order and section 42 required the
appeal to be filed in the Court wherein that application was
made.
3. Mr. Hota, learned advocate appears on behalf of
respondent and relies on several decisions.
(i) State of Maharashtra v. Ramdas Construction Co.
available at MANU/MH/0912/2006, paragraph-9
(ii) Canbank Financial Services Ltd. v. Haryana
PetroChemicals Ltd. available at MANU/DE/0794/2008,
paragraph-3 to 6.
(iii) Today Hotels (New Delhi) Pvt. Ltd. v. Intecture India
Designs Pvt. Ltd. available at MANU/DE/0068/2016, paragraphs 6,
10, 12 and 13.
(iv) Judgment dated 5th April, 2022 by a Division Bench of
the High Court at Calcutta in LPA 1 of 2022 (APL Metals Ltd. v.
Mountview Tracom LLP and others).
4. Relying on above decisions Mr. Hota submits, impugned
judgment was made on his client's application invoking section 42.
It, therefore, cannot be said to be a judgment coming under either
clause (a) or clause (b) in sub-section (1) of section 37, before
amendment. As such, the appeal be dismissed as not maintainable.
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5. In State of Maharashtra (supra) the Division Bench of
Bombay High Court said in paragraph-10, inter alia, the passage
extracted and quoted below.
"......In other words, the Court has not dealt with the
application for setting aside of the award on merits
and the same has been disposed of solely as a
consequence of rejection of the application for
condonation of delay and there has been no enquiry
as regards the rights of the parties on the issue of
setting aside of the award. The appealable order
which is contemplated for the purpose of exercise of
appellate jurisdiction is the one which deals with the
merits of the case in relation to the claim for setting
aside or refusing to set aside an arbitral award. As
already slated above, the appellate powers
under Section 37 are not in relation to the
proceedings which precedes the enquiry regarding
setting aside or refusing to set aside an arbitral
award. Being so, the consequence of the order of
dismissal of the application for condonation of delay
cannot itself amount to an appealable order
under Section 34(1) for the purpose of appeal
under Section 37(1) of the Act."
Sub-section (3) in section 34 mandates a separate period of limitation
for a petition made challenging the award. In that case, appellants
had challenged the award beyond the period of limitation. In the
circumstances, the Division Bench was of the view that order
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impugned therein was not one whereby the award was either set
aside or there was refusal to set it aside.
6. In Canbank Financial Services Ltd. (supra) the appeal was
against order of the learned single Judge allowing application of the
respondent made under section 8, to refer parties to arbitration.
Clearly such order did not come under either of the two clauses in
un-amended section 37. So also in Today Hotels (New Delhi) Pvt.
Ltd (supra) order impugned in the appeal had been made under
section 8.
7. In APL Metals Ltd (supra) order impugned before the
Division Bench was one made under sub-section (3) in section 36.
As such it is of no help to respondent in contending that this appeal
is not maintainable.
8. Challenge of appellants before the Court below was rejected
on the ground of maintainability since appointment of arbitrator was
by a judicial order of the High Court. On query from Court, it was
ascertained that the challenge petition under section 34 was filed
within time before the Court below.
9. Section 37 provides for appealable orders against, inter alia,
setting aside or refusing to set aside an arbitral award under section
34. The section has undergone amendment to incorporate refusing to
refer parties to arbitration under section 8, also as a ground of appeal.
The question arising for adjudication is whether the Court below in
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rejecting the petition under section 34, refused to set aside the
arbitral award. The question must be answered in the affirmative.
Throwing out the challenge on ground of maintainability is a ground
accepted by the Court below in refusing to set aside the award. As a
consequence, appellants have been deprived adjudication on their
challenge to the award.
10. Mr. Avijit Pal, learned advocate, who is present in Court
waiting for his matter to be called on points out, this Court does
not have original civil jurisdiction. Consequently, this Court
does not satisfy definition of Court given in clause (e) under
sub-section (1) of section 2. This High Court not having original
jurisdiction in civil matters, it cannot become an appellate Court
by applying section 42, as it is not a Court within meaning of
section 2(1)e, in the facts and circumstances. This was not
pointed out to the Court below and also almost missed by this
Bench. The near omission by this Bench is attributable to
myself having parent High Court, Calcutta, which has the
original jurisdiction.
11. Impugned judgment is set aside and the petition under
section 34 restored to the Court below, for adjudication as
expeditiously as possible.
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12. The appeal is allowed and disposed of as above.
(Arindam Sinha)
Judge
Sks
