Mr. Siddharath Singh And Mr. Ravi ... vs Cherian Varkey Construction ...
2023 Latest Caselaw 2436 UK

              Office Notes,
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                               AO No. 144 of 2009
                               Hon'ble Rakesh Thapliyal, J.

1. Mr. Siddharath Singh and Mr. Ravi Babulkar, learned counsel for the appellant.

2. Mr. M.S. Bisht, learned Brief Holder for the State.

3. Mr. Mohd. Matloob, learned counsel for the respondent no. 1.

4. Yesterday, matter was heard but hearing could not be concluded, therefore, it is listed, today.

5. During the course of arguments, Mr. Siddharath Singh, learned counsel for the appellant has placed reliance on the judgment of Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. and another Vs. Cherian Varkey Construction Company Pvt. Ltd. and others (2010) 8 SCC 24. By referring this judgment, Mr. Siddharath Singh, counsel for the appellant submits that in the present case, there was no proceeding pending between the parties, therefore, there was no question for invoking Section 89 CPC.

6. Respondent no. 1 had preferred a Writ Petition (MS) No. 533 of 2006 for issuance of a writ, order or direction in the nature of Mandamus commanding the respondents no. 1 and 2 to make the final payment to the petitioner due on them or to appoint any Arbitrator while exercise the power under Section 89 CPC for settlement of dispute between the petitioner and respondents no. 1 and 2.

7. In this petition, the Coordinate Bench of this Court by order dated 13.06.2006 by invoking Section 89 CPC appointed a retired Judge of High Court Mr. O.P. Garg, as an Arbitrator for deciding the dispute, with a direction to submit his report by 15.08.2006. Thereafter, matter came up for hearing before this Court on 06.05.2009 and on that date, counsel for the petitioner informed this Court that the Arbitrator vide 19.04.2008 had passed an award in compliance of this Court's order dated 13.06.2006. In view of the said statement, the Coordinate Bench of this Court, by order dated 06.05.2008 dismissed the writ petition as infructuous.

8. Mr. Siddharath Singh, counsel for the petitioner, by referring the aforesaid judgment, submits that Section 89 CPC should not be invoked in the present case because there was no suit or proceeding pending between the parties. Even otherwise, if Section 89 CPC has to be invoked, then for the purpose of invoking Section 89 CPC, the procedure should be followed but that was not followed in the present case. One of the ingredients for invoking Section 89 CPC is concurrence of other side.

9. This Court summoned the record of WPMS No. 533 of 2006 and during the course of arguments, Mr. Siddaharth Singh, counsel for the appellant, submits that paper book of WPMS No. 533 of 2006 may be supplied to him.

10. Registry is directed to supply the records of WPMS No. 533 of 2006 to Mr. Siddharath Singh, counsel for the appellant, on payment of requisite charges.

11. List this matter on 15.09.2023.

(Rakesh Thapliyal, J.) 23.08.2023 SKS