9911796707
TMI Blog2001 (2) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... Question involved in this appeal iswhether provisions of Order IX Rule 13 of the Code of Civil Procedure (for short referred to as the CPC) or the principles thereof are applicable in a case where objections under Section 33 of the Arbitration Act, 1940 (for short referred to as the Act) are not filed and ex-parte decree is passed on the basis of the award filed before the Court by making the award rule of the Court. The High Court has arrived at the conclusion that Order IX Rule 13 CPC is not applicable in such cases. Before appreciating the contentions, we would refer to few dates pertaining to the question involved. Both the parties to the present appeal were having disputes regarding the work of design and construction of two lane road bridge (both sub-structure and super structure) across Feeder Canal at R.D.16.5 (Balance Work). In a Special Suit No.31 of 1993 filed by the present respondent, the High Court of Calcutta vide its order dated 25.6.1993 directed appointment of Arbitrator to settle their disputes. The Arbitrator passed an award on dated 28.12.1996 against the appellants herein which was filed before the High Court on 6.3.1997. Notice for filing objections w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree cannot be said to be an ex-parte decree. That judgment and order is under challenge in this appeal. The aforesaid question is required to be decided on the basis of Section 41 of the Act, which provides that provisions of CPC are applicable to all the proceedings before the Court under the Act. It reads thus: - 41. Procedure and powers of Court.Subject to the provisions of this Act and of rules made thereunder (a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court and to all appeals, under this Act; and (b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court: Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters. Aforesaid Section is also required to be read in context of Section 141 of the CPC, which is as under: - 141. Miscellaneous Proceedings.The procedure provided in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s imperfect in form, or contains any obvious error which can be amended without affecting such decision; or (c) where the award contains a clerical mistake or an error arising from an accidental slip or omission. (Emphasis added) 16. Power to remit award.(1) The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit (a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; or (b) where the award is so indefinite as to be incapable of execution; or (c) where an objection to the legality of the award is apparent upon the face of it. (2) Where an award is remitted under sub-section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court: Provided that any time so fixed may be extended by subsequent order of the Court. (3) An award remitted under sub-section (1) shall become void on the failure of the arbitrato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall proceed to pronounce judgment Therefore, it cannot be stated that in case where objections under Section 30 or 33 are not filed the Court is bound to pass decree in terms of the award. (b) Section 5 of Limitation Act gives discretion to the Court to extend the time for filing application under Section 30 or 33 raising objections to the award. (c) The Civil Procedure Code including Order IX Rule 13 is applicable to the proceedings initiated by producing award before the Court for passing a decree. (d) The power of the Court to modify the award under Section 15 or to remit the award to the arbitrator for reconsideration under Section 16 varies from the jurisdiction of the Court to set aside the award under Section 30 or to determine the validity of the arbitration agreement or an award under Section 33. The result isbefore pronouncing judgment, the Court has to apply its mind to arrive at the conclusion whether there is any cause to modify or remit the award. Further the phrase pronounce judgment would itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the courts satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. Similarly, when the Court is required to proceed without objection application under Section 30 or 33 of the Act, it can not pronounce the judgment without considering the provisions of Sections 15 and 16 of the Act, which provide, as stated above, for modification or correction of any award or for remitting it to the arbitrator for re-consideration on the ground that (i) there is any error of law apparent on the face of the award, (ii) the award is incapable of being executed, (iii) the award has left undetermined any of the matters referred to arbitration, (iv) that a part of the award is upon a matter not referred to arbitration and (v) the award contains any obvious error. Jurisdiction of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... describing parties as plaintiff or defendant. Hence, in arbitration proceedings even if the suit is not filed, procedure provided in CPC is applicable and there is no reason to hold that as no party is described as plaintiff or defendant, Order IX would not be applicable. Even if the nomenclature of plaintiff or defendant is required to be taken into consideration, the party who seeks decree in terms of award can be held to be plaintiff and the party who objects to such award can be treated as defendant. If the contention that for application of CPC there must be suit, plaint, plaintiff, defendant or written statement is accepted, the provisions of Section 41 of the Act and Section 141 of CPC would be nugatory. At this stage, we would refer to some decisions, which were referred to by the High Court. The Court referred to@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Ganeshmal Bhawarlal v. Kesoram Cotton Mills Ltd. [AIR (39)@@ JJJJJJJJJJJJJJJJJJJJJJ 1952 Calcutta 10], wherein the learned Single Judge observed that inspite of Section 43 of the Arbitration Act and Section 141 of the CPC strictly the provision of Order IX Rule 13 does not apply to proceedings for setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to set aside such decree. Therefore, if application for setting aside the award is filed beyond the prescribed time and sufficient cause for condoning the delay in filing objection application is established, the Court has power to set aside such decree by following the procedure prescribed under Order IX Rule 13 CPC. Further, large part of the controversy involved in this appeal is covered by the decision rendered by this Court in Essar Constructions v. N.P. Rama Krishna Reddy [(2000) 6 SCC 94]. The Court observed that because of the applicability of Section 5 of the Limitation Act, 1963, if the court has not pronounced judgment for whatever reason, although the time prescribed for making the application has expired and an application for setting aside the award is made with a prayer for condonation of delay, the court cannot pronounce judgment until the application is rejected. The Court also observed that even after a decree is passed under Section 17, an application under Section 30 can be entertained provided sufficient cause is established. In either case, the rejection of the application would be a refusal to set aside the award. In case where such application is reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is apparent that delay in preparing and tendering the application before the Court was on the part of the concerned advocate. This would be sufficient cause for condoning, approximately 12 to 13 days delay in filing objections. In Essar Constructions (supra), this Court heldeven after a decree is passed under Section 17, an application under Section 30 can be entertained provided sufficient cause is established. In either case the rejection of the application would be a refusal to set aside the award. This decision would be applicable to the facts of the present case and as there was sufficient cause for condoning the delay, the Court ought to have set aside the ex parte decree passed on the basis of the award. At this stage, we would mention that before referring the question to the Larger Bench, the Division Bench in its judgment dated 16th December 1998 held that in the application filed under Section 33 of the Act, which was affirmed earlier, the appellant had prayed for condonation of delay and asked leave to file application under Section 33 on the ground stated therein. The Court observed that there was some procedural error in seeking leave of the Court to file objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
