Orissa High Court
Murnmayai Das And Others vs Niharmalini Ray on 12 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.15064 of 2023
Murnmayai Das and others .... Petitioners
Mr. B. C. Panda, Advocate
-versus-
Niharmalini Ray .... Opposite Party
Mr. D. Pattnayak, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
12.05.2023
Order No.
01. 1. Mr. Panda, learned advocate appears on behalf of petitioners
and submits, impugned is order dated 17th April, 2023 made by the
District Judge in the challenge proceeding under section 34 of
Arbitration and Conciliation Act, 1996. He submits, the award was
made against his clients on, inter alia, omission to produce documents.
In the challenge proceeding, father of petitioners had obtained leave to
produce additional evidence. Before he could do so he passed away. His
clients thereupon wanted to adduce the evidence. By impugned order the
application stood rejected. He relies on judgment dated 13th October,
2022 of this Bench in WP(C) no.18536 of 2022 (M/s. Bhadra
// 2 //
Products vs. M/s. Indian Farmers Fertilizer Co-operative Limited).
2. Mr. Pattnayak, learned advocate appears on behalf of opposite
party-claimant in the reference. He submits, a challenge procedure is not
same as appeal. Grounds for challenge have been provided in section 34.
There is no scope for producing additional evidence.
3. He submits, there cannot be judicial review, or other than the
grounds declared by the Supreme Court in Whirlpool Corporation vs.
Registrar of Trade Marks, Mumbai, reported in (1998) 8 SCC 11,
where efficacious alternative remedy stands provided. This was
reiterated by the Supreme Court in Harbanslal Sahnia vs. Indian Oil
Corpn. Ltd., reported in (2003) 2 SCC 107.
4. He also relies on judgment dated 20th August, 2018 of the
Supreme Court in Civil Appeal no.8367 of 2018 (M/s. Emkay Golbal
Financial Services Ltd. vs. Girdhar Sondhi) on scope of section 34.
5. It appears from award dated 28th July, 2016, under challenge in
the Court below that omission of respondent, since deceased, to adduce
evidence, had gone against him. A passage from paragraph 26 in the
award is reproduced below.
"... ... ... The respondent too was quite silent in this
matter. The evidence on record goes to show that the audit
work of the company was going on since the institution of
this arbitration proceedings and though one year has
elapsed in the mean while no efforts what so ever was
// 3 //
made by the respondent to produce the audit report after
completion of audit which is not at all a difficult task for
a mini company of a turnover approximately of Rs.1 crore
to determine admissibility of the alleged expenditures and
to ascertain the liability of the companies.; In spite of
specific allegation by the respondent the company is
saddled with liabilities of payment to the creditors and that
the company also sustain a huge loss to the tune of Rs.54
lacs far exceeding the claim amount by the claimant not a
scarp of paper is produced in support of such loss and
liabilities hence I left out that for consideration in
assessing the net profit of the company."
(emphasis supplied )
6. In the circumstances, where original respondent in the reference had
already obtained leave to produce additional evidence in the challenge
proceeding, the case appears to be similar on facts as in Bhadra Products
(supra). That being so impugned order is set aside and quashed. This is
being done because the similarity in the facts makes it an exceptional case
and, therefore, open to interference in judicial review under declaration of
law by the Supreme Court in Deep Industries Limited vs. Oil and Natural
Gas Corporation Limited, reported in (2020) 15 SCC 706. Pursuant
thereto, another Bench consisting of the learned judge, who had authored it,
made order dated 18th September, 2020 in Punjab State Power
Corporation Limited vs. EMTA Coal Limited, reported in (2020) 17
SCC 93. The Supreme Court, thereafter, in Bhaven Construction Limited
// 4 //
(supra) considered, inter alia, Deep Industries Limited (supra) and EMTA
Coal Limited (supra) to declare that interference was possible in rarest of
rare cases.
7. Mr. Pattnayak submits, there be target set for the Court below to
dispose of the challenge proceeding. The submission stands recorded for the
Court below to expeditiously deal with the challenge on allowing petitioners
to adduce evidence and for hearing arguments and judgment. Submission at
the Bar is, the parties will assist the Court in concluding the proceeding by
31st August, 2023.
8. The writ petition is disposed of.
(Arindam Sinha)
Judge
Prasant
PRASANT Digitally signed by
PRASANT KUMAR
KUMAR SAHOO
Date: 2023.05.15
SAHOO 13:17:52 +05'30'
