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Judgment
Rajesh Tandon, J.—Heard Sh. U.K. Uniyal, Senior Advocate assisted by Sh. Paresh Tripathi, Advocate for the revisionist and Sh. J.C. Belwal, Advocate for the respondents.
By the present revision u/s 115 of the Code of Civil Procedure, the applicant has prayed for setting aside the order dated 20.05.2006, by which the District Judge, Haridwar has passed the order observing that the jurisdiction for the execution of the award lies at Haridwar.
Briefly stated, during the dispute between the revisionist M/s Jeewan Enterprises and Director, Uttaranchal Mandi Parishad, an application was filed before the Hon''ble High Court of Judicature at Allahabad u/s 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator being Petition No. 97 of 1999. The petition was disposed of on 09.08.2002 by appointing Hon''ble Mr. Justice R.R. Yadav (Retd.) as sole Arbitrator. Thereafter, an application was filed for replacement of another arbitrator. The said application was rejected on 02.05.2003 with the following observations:
The application, which was registered as Arbitration Application No. 97 of 1999, was disposed of by my predecessor in office on 09th August, 2002 appointing Mr. Justice R.R. Yadav, a retired Judge of this Court as the sole Arbitrator.
Now an application has been filed by the Deputy Director (Construction) Uttaranchal Krishi Utpadan Mandi Parishad, Haldwani, District Nainital, Uttaranchal praying for recall of the aforesaid order and alternatively, for appointment of an Arbitrator, belonging to Uttaranchal State or nearby places, in place of Mr. Justice R.R. Yadav (Retd.).
Before I proceed to consider these aspects of the matter, it is necessary to emphasise that the application for recall of the order dated 09th August, 2002 passed by the then Hon. the Chief Justice of Allahabad High Court has been filed on behalf of the Deputy Director (Construction) Uttaranchal, Krishi Utpadan Mandi Parishad, Haldwani, District Nainital. The application filed on behalf of the Deputy Director (Construction) Uttaranchal, Krishi Utpadan Mandi Parishad, Haldwani, District Nainital, in my view, cannot be held to be maintainable, inasmuch as, it was not a party to the original application filed u/s 11 of the Act. By now law is well settled that in the absence of a special reason, an application for recalling an order can only be moved by a party to the proceedings.
Even assuming that this Court lost its jurisdiction to entertain the application u/s 11 of the Act during the pendency of the same, even then the question of recalling the order appointing a sole Arbitrator, at this stage, is not , warranted. In Konkan Railway Corpn. Ltd. and Others Vs. M/s. Mehul Construction Co., the Supreme Court while deciding the question whether the order passed by the Chief Justice of the State u/s 11 of the Act is an administrative or a judicial order, has held that there was nothing in Section 11 of the Act requiring the party, other than the party making the request, to be noticed.
There is yet another prayer in the instant application that Justice R.R. Yadav (retired) be replaced by another Arbitrator who stays in the State of Uttaranchal or at a nearby place. Although this prayer was made in the application but at the time of argument, Mr. Madhyan, learned senior counsel for the applicant did not press this prayer. Accordingly, this prayer is also rejected.
The sole Arbitrator on the application of Uttaranchal Krishi Utpadan Mandi Samiti, Haldwani, Nainital gave the award partially in favour of the revisionist on 26.08.2005. The objections were filed by the revisionist on 16.09.2005 against the award dated 26.08.2005 u/s 34 of the Arbitration and Conciliation Act, 1996 in the court of District Judge, Lucknow, which was registered as Regular Suit as 28 of 2005. The order was passed to the following effect:
16.09.2005 - A.3 objections on behalf of objector claimant against award u/s 34 of the Arbitration Act is being put up with Munsarim Report.
Court Fee Rs. 18/- is less
C-7 Application for inviting objections.
16.09.05
according to the report of the Sadar Munsarim, the deficiency of the court fee has been made good on application C-7. Rest of the matter there is no adverse report of the Sadar Munsarim.
Heard the counsel for the petitioner and perused the petition u/s 34 of the Arbitration and Conciliation Act, 1996. The award was pronounced on 26.08.2005. Let it be registered as Regular Suit and issue notice to the respondent/O.P., fixing 16.11.2005 for filing written statement and disposal.
Sd/-
District Judge
Lucknow.
16.09.05
Application has also been moved C-7 for granting leave to file the petition. Allowed and the petitioner is permitted to file the petition u/s 34 of the Arbitration & Conciliation Act, 1996 against the O.P. No. 2 & 3 also.
As will appear from the aforesaid order, both the parties are contesting the case at Lucknow. The written arguments have been filed by Sri J.C. Belwal, Counsel for the respondent has submitted to the following effect in the written submission:
The learned sole arbitrator has awarded a sum of Rs. 17,29,258.95/- in favour of revisionist contractor against the respondent No. 1 and has accepted the counter claim of respondent No. 1 to the extent of Rs. 3,70,864.90/-. After deducting the amount of counter claim, a total sum of Rs. 13,58,354.05/- has been awarded against the respondent No. 1. It is clear from the award that originally only Uttar Pradesh Krishi Utpadan Mandi Samiti was party to the Arbitration Proceeding but the Arbitrator has imposed the entire liability upon respondent No. 1.
After the award was delivered, the revisionist filed objections u/s 34 of the Arbitration & Conciliation Act 1996, before the District Judge, Lucknow. The respondent No. 1 filed objections against the said application interalia challenging the jurisdiction of District Judge, Lucknow to hear the objections u/s 34 of the Arbitration and Conciliation Act, 1996 and mentioning that the only jurisdiction to entertain such application vests in District Judge, Haridwar.
A perusal of the record shows that on 09.12.2005, an objection was filed against the said award dated 26.08.2005 u/s 34 of the Act, being Miscellaneous Case No. 23 of 2005 at Haridwar by the respondent. The applicant has filed the objections on 19.04.2006 at Haridwar that the court has no jurisdiction at Haridwar.
A perusal of the record shows that the application u/s 34 of the Arbitration & Conciliation Act, having been filed at Lucknow on 16.09.2005, which has been duly registered and, therefore, the subsequent application filed u/s 34 of the Arbitration and Conciliation Act on 09.12.2005, on behalf of the respondent cannot proceed being subsequent proceedings in respect of the same cause of action. The principles contained u/s 10 of the CPC shall also come in the way of the respondent.
As will appear from the order passed by the Hon''ble High Court of Allahabad while allowing the application u/s 11 of the Arbitration and Conciliation Act that the question of jurisdiction was raised and a finding was recorded that both the parties have agreed for the Allahabad High Court with regard to the reference of the dispute to the Arbitrator.
The Apex Court in the case of Commissioner of Income Tax, Bhopal v. Ralson Industries Ltd. reported in (2007) 2 SCC 326, has observed regarding judicial discipline after relying upon the judgment of Morgan Securities and Credit (P) Ltd. V. Modi Rubber Ltd. reported in (2006) 12 SCC 642, in the following manner:
In Morgan Securities and Credit (P) Ltd. v. Modi Rubber Ltd., this Court opined:
While exercising its power under Sub-section (3) of Section 22, the Board cannot ignore an order passed by a superior court. It may be bound by the doctrine of judicial discipline.
In view of the aforesaid, liberty is given to the applicant to get his objections decided before the District Judge, Lucknow u/s 34 of the Arbitration and Conciliation Act, 1996.
In view of above, revision deserves to be allowed. It is made clear that the proceedings before the District Judge in pursuance of the present order, shall remain in abeyance till the disposal of the application u/s 34 of the Arbitration and Conciliation Act, 1996 at Lucknow.
In view of the above, revision is allowed. The order dated 20.05.2006 passed by the District Judge, Haridwar is quashed. The matter is sent back to the District Judge for deciding afresh after the objections u/s 34 of the Arbitration and Conciliation Act, 1996, are decided by the District Judge, Lucknow.