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TMI Blog2021 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... pute between the parties for the adjudication to the Arbitrator Housing Commissioner. Therefore, unless and until it was challenged by the contractor before the higher forum, the respondent contractor cannot be permitted to ignore and/or to avoid the award passed by the Arbitrator Housing Commissioner dated 07.11.2008. As per Section 19 of the 1983 Act, Revision Application to the High Court shall be maintainable only against the award passed by the learned Arbitral Tribunal. Therefore, prima facie it appears that as such the order passed by the learned Arbitral Tribunal rejecting the reference petition was not maintainable as by order dated 27.02.2017, no award was passed by the Tribunal - technically speaking the award passed by the Arbitrator Housing Commissioner dated 07.11.2008 stands even today. It is binding between the parties. So long as the award passed by the Arbitrator Housing Commissioner dated 07.11.2008 stands, there cannot be any subsequent fresh proceeding with respect to the same claims which were considered and adjudicated by the Arbitrator Housing Commissioner while passing the award dated 07.11.2008. So long as the said award stands it is binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Riviera Town, Near MANIT Square, Bhopal. Contract was awarded to the respondent herein. An agreement dated 15.07.2005 was executed between the appellants and the respondent. In the year 2008, the disputes arose between the parties. According to the appellants, the respondent was supposed to complete the work within 18 months. However, despite granting repeated extensions, the contractor failed to complete the work, on account of which, appellants rescinded the contract by invoking clause 3 of the contract agreement. Aggrieved by the order dated 30.06.2008, rescinding the contract, the respondent contractor by invoking clause 29 of the contract agreement filed a claim petition along with granting extension of time upto 31.03.2009 before the Deputy Housing Commissioner, Bhopal. The respondent contractor also filed a writ petition before the High Court seeking direction to permit him to complete the work. High Court vide Order dated 20.08.2008 disposed of the said petition on a joint consensus of the parties that the dispute shall be decided by the arbitrator i.e., Housing Commissioner, M.P. Housing Board within the stipulated period. The respondent contractor thereafter filed a modif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pradesh vide judgment and order dated 05.05.2017 held that if an agreement falls within the definition of works contract then the dispute arising from such an agreement shall be adjudicated by the Tribunal under the 1983 Act. The review application was opposed by the appellants. Vide order dated 07.09.2017, the High Court dismissed the review petition by observing that the case did not fall within the review jurisdiction of the Court under Order 47 Rule 1, CPC. 3.1 That after the dismissal of the review petition, the respondent contractor filed the present Arbitration Revision Petition before the High Court under Section 19 of the 1983 Act challenging the order passed by the learned Tribunal dated 27.02.2017 dismissing the claim/reference as not maintainable. By the impugned judgment and order the High Court has allowed the said revision and has quashed and set aside the order passed by the learned Tribunal dated 27.02.2017 and has directed the learned Arbitral Tribunal constituted under the 1983 Act to decide the reference/claim on merits and in accordance with law. 4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, M.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is further urged that even subsequent to the order passed by the Arbitral Tribunal dated 27.02.2017, with a mala fide intention as an afterthought, the respondent contractor filed a review application before the High Court challenging the consent order dated 20.08.2008 i.e., after a period of 9 years of the order and the said review petition had also came to be dismissed by the High Court. It is submitted that even dismissal of the review petition had also attained the finality and the same was not carried further. It is urged that therefore, it was not open for the respondent contractor to file a fresh claim petition for the same claim which was made before the learned Arbitrator Housing Commissioner constituted pursuant the order passed by the High Court. 6.5 It is submitted that in the case of Madhya Pradesh Rural Road Development Authority and Another vs. L.G. Chaudhary Engineers and Contractors, (2018) 10 SCC 826, relating to the issue of jurisdiction of the M.P. Tribunal, this Hon ble Court has categorically held that if no objection to the jurisdiction of the arbitration was taken at the relevant stage, that award cannot be annulled only on that ground. It is urged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 3 of the 1983 Act. 8.1 It is urged that even as per Section 7B of the 1983 Act no dispute can be referred to the Arbitration Tribunal unless the dispute is first referred for decision of the final authority under the scope of the term works contract . It is only once a decision is made or if the authority fails to make a decision can a claim be preferred before the Tribunal. 8.2 It is submitted that the 1983 Act is a Special Act insofar as the State of M.P. is concerned, and therefore it will prevail over the provisions of the Arbitration Act, 1996. Reliance is placed on the decision of this Court in the case of M.P. Rural Road Development Authority and Anr. vs. L.G. Chaudhary Engineers Contractors reported in (2012) 3 SCC 495 and the subsequent decision in M.P. Rural Road Development Authority and Anr. vs. L.G. Chaudhary Engineers Contractors reported in (2018) 10 SCC 826. 8.3 It is submitted that the full Bench of the Madhya Pradesh High Court has also taken the same view in the case of Viva Highways Ltd. vs. MP Rural Road Development Corporation Ltd. in AA No. 14 of 2017 and connected matters. It is submitted that the said judgment has been approved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was consistent with Clause 29 as this represented a decision which would be the first stage of resolution of dispute as per Clause 29. It is submitted that the Housing Commissioner by an order dated 07.11.2008 by an exparte order dismissed the claims of the respondent contractor. Immediately thereafter, in line with Clause 29 of the Agreement and Sections 7 and 7B of the 1983 Act, a reference was preferred by the respondent contractor herein under the 1983 Act. It is contended that the decision of the Housing Commissioner dated 07.11.2008 cannot be said to be a decision under the Arbitration Act, 1996. It is therefore urged that the respondent was not required to file the objections under Section 34 of the Arbitration Act, 1996 as contended on behalf of the appellants. It is submitted that a reference filed by the respondent contractor after the order of the Housing Commissioner was maintainable only after the order of the Housing Commissioner dated 07.11.2008 and not before that. It is therefore submitted that the respondent contractor has acted strictly in accordance with Sections 7 and 7B of the 1983 Act read with Clause 29 of the Contract. 8.6 Alternatively, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete the arbitration proceedings. (b) To direct the Respondents not to cancel the agreement and be permitted the Petitioner to complete the work and quash the order of tender dated 20.07.2008 (Annexure P/22) and dated 27.07.2008 Annexure P/23). (c) Set aside the order dated 30.06.2007 (Annexure P/19) passed by the Executive Engineer. (d) To direct the Respondents to pay the amount of outstanding dues of ₹ 17835925.00 with interest and compensation of ten crores. (e) To direct the Respondents not to award the contract to any other person and also direct the Respondents to decide the arbitration, after affording the proper opportunity to the Petitioner. (f) To call the relevant records (g) Any other order/ orders, directions which this Hon'ble Court deems fit and proper may kindly be also granted. 11.2 That thereafter the High Court passed the following order dated 20.08.2008: Shri Sameer Seth, Counsel for the Petitioner. Shri T.S. Ruprah, Sr. Counsel with Shri Harmeet Singh, Counsel for Respondents/ M.P. Housing Board. Learned counsel for the Petitioner fairly stated that the arbitration clause in the agreement ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputes between the parties to the Arbitrator Housing Commissioner and thereafter submitting the claims before the Housing Commissioner and the award passed by the learned Arbitrator Housing Commissioner dated 07.11.2008. A detailed written statement was filed. The relevant extracts of the written statement are as under: 1. The claim was also filed by the petitioner to the Housing Commissioner of Respondents which was duly decided complying with the directions of the Hon'ble High Court of M.P. 2. The Hon'ble High Court by Order dated 20.08.2008 in Writ Petition No. 9131/2008 directed the Commissioner of M.P. Housing Board to decide the application of interim stay filed by the Contractor before retendering of the works. The Directions were also issued for final hearing under clause 29 of the agreement with in the provision of agreement. The Hon'ble Commissioner had fully complied with the directions of the Hon'ble High Court and the Contractor was duly notice but even than the Contractor did not take any pains even to see the order of Commissioner dt. 07.11.08, which was passed by him in compliance with the directions of the Hon'ble High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reference by holding that the Reference Petition is not maintainable. While dismissing the Reference Petition as not maintainable in para 18, the learned Arbitral Tribunal observed as under: On perusal of the order dated 20.08.2008 (Ex. D/18) passed by the Hon'ble High Court it seems that the said order was passed with the consent of both the parties. The order indicates that the Housing Commissioner was appointed as arbitrator to decide the dispute between the parties. The contention of the learned Counsel of the Petitioner that the Housing Commissioner was directed to decide the Petitioner's quantified claim by invoking clause 29 as competent authority does not appear to be acceptable because the Housing Commissioner has been designated in the order as the Arbitrator. Moreover, the Housing Commissioner was not directed to decide the dispute as competent authority. Apart from this, under clause 29 there are only two competent authorities, first, is Dy. Housing Commissioner and if he fails to decide the dispute within 60 days second is Additional Housing Commissioner. There is no provision to decide the quantified claim by the 3rd competent authority. Besides it, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court in the case of Ditya (supra) elaborately discussing in para 12 has held that even a wrong decisions are taken which is contrary to the law is binding upon the parties unless and until it is set aside in the appeal or by the other remedy provided under the clause. 12. After the aforesaid order dated 27.02.2017 passed by the learned Tribunal holding that the reference petition was not maintainable in view of the earlier order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008 directing the adjudication of the dispute by the Arbitrator Housing Commissioner, the respondent contractor filed a review petition before the High Court, having realized that the order dated 20.08.2008 passed in the Writ Petition No.9131 of 2008 will come in his way in pursuing the reference petition before the learned Arbitral Tribunal, seeking clarification of the order passed in W.P. No.9131 of 2008 to the extent that by directing the adjudication of the dispute by the Housing Commissioner, it does not take away the jurisdiction of the learned Arbitral Tribunal constituted under the Act 1983. The said review petition was opposed by the appellants. Vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was a consent order; (iii) Thereafter the respondent contractor submitted the claims before the learned Arbitrator Housing Commissioner; (iv) The learned Arbitrator Housing Commissioner passed an award which has attained the finality; (v) That the review petition filed by the contractor for clarification of the order dated 20.08.2008 passed in Writ Petition No.9131 of 2008 to clarify the aforesaid order to the extent that it did not take away the right of the contractor to file the reference petition before the learned Arbitral Tribunal under the 1983 Act came to be rejected and the same also attained finality; (vi) The claims submitted before the Arbitrator Housing Commissioner; before the High Court in Writ Petition No.9131 of 2008; and the claim submitted in Reference Petition before the learned Arbitral Tribunal under the 1983 Act are the same without any change; (vii) In the subsequent reference petition before the learned Arbitral Tribunal under the 1983 Act there was no reference to the earlier order passed by the High Court in Writ Petition No.9131 of 2008 referring the dispute between the parties for adjudication to Arbitrator Housing Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case in which an award has been made under this Act by issuing a requisition to the Tribunal and upon receipt of such requisition, the Tribunal shall send or cause to be sent to that Court the concerned award and record thereof; Provided that any application for revision may be admitted after the prescribed period of three months, if the applicant satisfied the High Court that he had sufficient cause for not preferring the revision with such period. Explanation: The fact that the applicant was misled by any order, practice or judgment or the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this subsection. (2) If it appears to the High Court that the Tribunal (a) has exercised a jurisdiction not vested in it by law; or (b) has failed to exercise a jurisdiction so vested; or (c) has acted in exercise of its jurisdiction illegally, or with material irregularity; or (d) has misconducted itself or the proceedings; or (e) has made an award which is invalid or has been improperly procured by any party to the proceedings, the High Court may make such order in the case as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections were raised by the respondent contractor at the appropriate stage, the award cannot be annulled subsequently. At the cost of repetition, it is observed that at no point of time the respondent contractor had challenged the award passed by the Arbitrator Housing Commissioner and as observed and held hereinabove even no court has set aside the award declared by the Arbitrator Housing Commissioner dated 07.11.2008 and the same has attained finality. Therefore, the same is binding between the parties. Hence, the subsequent fresh reference petition before the learned Arbitral Tribunal under the 1983 Act for the very same claims which were raised before the Arbitrator Housing Commissioner would not be maintainable at all. We agree with the view taken by the Arbitral Tribunal. 20. In view of the above and for the reasons stated above, the present appeals are allowed. The impugned judgment and order dated 08.05.2018 passed by the High Court in A.R. No.11, 12 13/2017 quashing and setting aside the order passed by the learned Arbitral Tribunal constituted under the 1983 Act dated 27.02.2017 is hereby quashed and set aside and the order passed by the Arbitral Tribunal da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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