M.S. Freight Carriers vs Union of India (UOI) and Others

H.N. Sarma, J.—The revisional jurisdiction of this Court conferred u/s 115, Code of Civil Procedure, is sought to be invoked by the Petitioner by challenging the order dated 30.4.2008 passed by the learned Single Judge in RFA No. 01/2007 whereby and wherein the appeal filed by the Union of India u/s 37 of the Arbitration and Conciliation Act, 1996, was allowed by setting aside the Award passed by the learned Arbitrator as well as the order passed by the learned Additional District Magistrate (J), Aizawl District, Aizawl, on the application filed by the Union of India u/s 34 of the Arbitration and Conciliation Act, 1996, (''the Act'').

We have heard Mr. B.K. Bhattacharjee, learned Counsel for the Petitioner.

To put in short the bare minimum facts necessary for disposal of this revision petition are that the Petitioner is a private limited company dealing with the business of transportation in various parts of the country. In course of business, the Petitioner was allotted with the contract work of handling and conveyance of cement, bitumen and steel from Guwahati railway station to different parts of State of Assam under 36-BRIF, Project Pushpak and a contract to that effect was executed between the parties on 13.8.1999. In course of execution of the contract, a dispute regarding entitlement of enhancement of rate due to escalation of price on certain materials having arose, the matter was referred for arbitration on the basis of an application filed u/s 11 of the Act before the hon''ble the Chief Justice of this Court. Both the parties appeared before the learned Arbitrator and vide the judgment and Award dated 21.12.2005, the learned, Arbitrator granted relief to the Petitioner for payment of the escalated price. The said Award was challenged by the Union of India by filing an application u/s 34 of the Act in the court of the learned Additional District Magistrate (J), Aizawl District, Aizawl, which happened to be the Principal civil court of Original Jurisdiction within the meaning of Section 4(e) of the Act. The said application having been dismissed vide order dated 24.11.2006, an appeal was preferred against the said order before a learned Single Judge of this Court, which was registered as RFA No. 01/07. The learned Single Judge after hearing the parties allowed the appeal vide judgment and order dated 30.4.2008 and set aside the order passed by the learned Additional District Magistrate (J), Aizawl District, Aizawl, in Arbitration Case No. 1/2006 as well as the Award passed by the learned Arbitrator. Challenging the aforesaid judgment passed by the learned single Judge, the present revision petition has been filed by the Petitioner.

The present one being a revision petition filed u/s 115, Code of Civil Procedure, against a judgment and order passed by a Single Judge of this Court in RFA No. 01/07, a question about the maintainability of the revision petition was raised.

Mr. Bhattacharjee, learned Counsel for the Petitioner, submits that since the Arbitration Act does not provide any further remedy against an appellate order passed in exercise of power u/s 37 of the Act, thus a Division Bench of this Court can examine and scrutinize such an order passed by a Single Judge in the absence of any remedy. In support of his contention Mr. Bhattacharjee has relied on the decision of the Apex Court in the case of the Union of India (UOI) Vs. Mohindra Supply Company, , Mulk Raj Chhabra and Others Vs. New Kenil Worth Hotels Ltd. and Another, and Shyam Sunder Agarwal and Co. Vs. Union of India,

The submission made by the learned Counsel received our due consideration. Admittedly, in this revision petition, the Petitioner has questioned the legality and the validity of the judgment and order passed by the learned Single Judge of this Court in RFA No. 01/07. The said appeal was filed against the order of refusal by the civil Court to set aside the arbitral Award filed u/s 34 of the Act, which is an appellate order u/s 37 of the Act. The said appeal is a statutory one. The revisional jurisdiction u/s 115, Code of Civil Procedure, is attracted to examine the illegality or material irregularity that might be committed by any court subordinate to the High Court. Admittedly the impugned order was passed by the learned Single Judge in exercise of power u/s 37 of the Act and not a subordinate court within the meaning of Section 115, Code of Civil Procedure.

In the case of Mohindra Supply Co. (supra), referred by Mr. Bhattacharjee, the Apex Court held, inter alia, that when the Single Judge disposes of an appeal u/s 39(1) of the Act, there is no further right of appeal under Clause 10 of the Letters Patent of the high Court against the order of the Single Judge and a Second Appeal u/s 39(2) of the Act from such an order is expressly barred.

In the case of Mulk Raj Chhabra (supra), the Apex Court did not referred with the SLP filed before it as order impugned therein is appealable before the Division Bench u/s 37 of the Act.

In the case of Shyam Sunder Agarwal & Co. (supra), Apex Court in the context of the facts of that case held that the order impugned therein having passed by the Deputy Commissioner clothed with the power of civil court under the rules for the Administration of Justice and Police in the Khasi and Jaintia Hills, 1937, a revision petition before the High Court against such an order held not to be barred u/s 115, Code of Civil Procedure. In that case, admittedly, the learned Deputy Commissioner exercised the appellate power u/s 37 of the Act against an order of rejection passed by the Assistant to the Deputy Commissioner u/s 34 of the Act and the court of the Deputy Commissioner is a court subordinate to the High Court.

Thus, the assistance of ratio of the aforesaid cases sought to be applied by Mr. Bhattacharjee is misplaced in the facts of the case.

In the case in hand, the impugned order having been passed in a statutory appeal u/s 37 of the act by the learned Single Judge, the same cannot again be subjected to further revisional jurisdiction before a Division Bench of this Court, it is not being a court subordinate to the High Court.

In view of the above discussions, we have no alternative but to hold that this revision petition is not maintainable and accordingly, it stands dismissed.