Punjab-Haryana High Court
Jagdeep Singh vs S.S. Zombade on 30 September, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
Civil Revision No.814 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.814 of 2013 (O&M)
Date of decision: 30.09.2013
Jagdeep Singh
....Petitioner
Versus
S.S. Zombade
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. V.K. Sachdeva, Advocate, for the petitioner.
Mr. Yogesh Chaudhary, Advocate, for the respondent.
*****
PARAMJEET SINGH, J.
Instant revision petition has been filed for setting aside the order dated 16.10.2012 passed by learned Additional District Judge, Karnal, whereby issues have been ordered to be framed in execution petition filed by respondent, arising from the arbitration award dated 10.05.2010.
Shorn of unnecessary facts, relevant facts for disposal of the present revision petition are that vide written authority given by respective parties and also the related parties and shareholders of M/s Poshak Agrivet Pvt. Ltd. (earlier named M/s Poshak Feeds (India) Pvt. Ltd.) referees were appointed. Reference was in respect to settlement of Singh Ravinder 2013.10.09 10:03 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.814 of 2013 accounts/relationship for business and properties relating to M/s Poshak Agrivet Pvt. Ltd. and other immovable properties. Ultimately after considering the case of the parties award was passed on 10.05.2010 at Karnal. Against that award respondent - S.S. Zombade filed an execution application before the learned Additional District Judge, Karnal to which the petitioner has filed objections. In the said execution application, learned Additional District Judge has framed the following issues and directed the parties to lead evidence: -
"1) Whether the award dated 10.05.2010 was modified and re-affirmed as per the subsequent minutes of effort-cum-meeting to defuse tensions amongst both the parties leading to some modifications? OPP (Onus on both the parties)
2) Whether the respondent Jagdeep Singh Virk has violated the terms and conditions of the Award dated 26.9.2010 and thereby caused loss to the petitioner frustrating the execution of the Award as per its terms and conditions? OPP (1st party S.S. Zombade)
3) If point No.2 is proved, in affirmative, to what relief and the assistance of the court is required by the applicant to sought the execution of the terms and conditions of the Award which has not been executed by the respondent? OPR (Jagdeep Singh Virk)
4) Whether the applicant S.S. Zombade has concealed tru and material facts from the court as detailed in para No.1 of the objection-cum-reply filed by the respondent Jagdeep Singh Virk? OPR
5) Whether the acts of omissions and commissions on the part of the applicant S.S. Zombade as detailed in para Singh Ravinder 2013.10.09 10:03 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.814 of 2013 No.8 of the reply alongwith other details are there and thus makes the applicant liable for the non-
execution of the Award? If so to what effect? OPR (Jagdeep Singh Virk)
6) Whether the respondent had fulfilled only one obligation pertaining to transfer the shares of the Company against face value and the rest of the clauses in the Award were to be fulfilled by the applicant S.S. Zombade but he failed to do so? OPR (Jagdeep Singh Virk).
7) To what relief, both the parties, if any, are entitled to and in what manner? OPR (Jagdeep Singh Virk) I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that when the award of an arbitrator is to be executed there is no question of framing the issues and leading the evidence as if the court is to try the same as a civil suit. Proceedings before the learned Additional District Judge are akin to appeal and not like civil suit. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in Fiza Developers and Inter-Trade Private Limited vs. AMCI (India) Private Limited and another, (2009) 17 Supreme Court Cases 796.
Learned counsel for the respondent vehemently opposed the contentions raised by learned counsel for the petitioner and submitted that the impugned order is sustainable in the eyes of law. There is no illegality or perversity in the impugned order. Judgment cited by learned counsel for the petitioner is not applicable in the facts and circumstances Singh Ravinder 2013.10.09 10:03 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.814 of 2013 of the present case.
I have considered the rival contentions raised by learned counsel for the parties.
Division Bench of this Court in CR No.4216 of 2011 - M/s Punjab State Industrial Development Corporation Ltd. vs. Mr. Sunil K. Kansal, decided on 11.10.2012 considering the Fiza Developers (supra) has held as under: -
"30. In view of the above, we answer the question of law framed as follows: -
(i) The issues, as required under Order XIV Rule 1 of the Code as in the regular suit, are not required to be mandatorily framed by the Court. However, it is open to the Court to frame questions which may arise for adjudication.
(ii) The Court while dealing with the objections under Section 34 of the Act is not bound to grant opportunities to the parties to lead evidence as in the regular civil suit. The jurisdiction of the Court being more akin to the appellate jurisdiction;
(iii) The proceedings before the Court under Section 34 of the Act are summary in nature. Even if some questions of fact or mixed questions of law and/or facts are to be decided, the court while permitting the parties to furnish affidavits in evidence, can summon the witness for cross-examination, if desired by the other party.
Such procedure is keeping in view the principles of natural justice, fair play and equity."
In Fiza Developers's case (supra) it has been held that issues are not required to be framed in proceedings arising out of arbitration Singh Ravinder 2013.10.09 10:03 I attest to the accuracy and integrity of this document Chandigarh -5- Civil Revision No.814 of 2013 proceedings and the evidence is not required to be led as is required in a civil suit. However, the court can frame the question which may arise for adjudication. The court can afford opportunity to lead evidence by way of affidavits. The scope of enquiry in proceedings under Section 34 of the Act is restricted to the grounds mentioned in Section 34(2) of the Act for setting aside the award. The grounds for setting aside of award are specifically mentioned under the provisions of the Act. As per the provisions of Section 34(2) of the Act, the burden of proof is on the person who makes the application. Framing of issues is necessary only where the material proposition of facts or law is affirmed by one party and denied by other. In those circumstances, the court can frame issue. In case of arbitration proceedings, court can only frame question of law for adjudication as the proceedings are summary in nature and evidence by way of affidavits can be permitted. As such, in view of settled proposition of law in Fiza Developers's case (supra), issues are not required to be framed in application under Section 34 of the Act.
So far as the leading of evidence is concerned, the proceedings under Section 34 of the Act being summary in nature, evidence as required in civil court is not required to be led. However for adjudication of question of law or fact in summary proceedings, the evidence can be led by way of affidavits only. When doing so, the applicant can be afforded opportunity to file affidavit of his witness in proof of his assertions in the application and to rebut the same opportunity is required to be given to the respondent to place on record Singh Ravinder 2013.10.09 10:03 I attest to the accuracy and integrity of this document Chandigarh -6- Civil Revision No.814 of 2013 his evidence by way of affidavit where-ever the case so warrants, the court may permit cross-examination of persons swearing the affidavits. Since the proceedings are summary in nature, the cross-examination should not be permitted in a routine manner.
From the perusal of provisions of Order 14 Rule 1 CPC and Section 34 of the Act, it is clear that issues are not an integral part of the process of proceedings under Section 34 of the Act. This only required in a civil suit.
In view of the above discussion, impugned order dated 16.10.2012 passed by learned Additional District Judge, Karnal, is set aside. However, the Court of Additional District Judge, Karnal, will be at liberty to frame questions of law for adjudication and may afford opportunity to the parties for leading evidence by way of affidavit as is required in summary proceedings. The trial court shall make an endeavour to dispose of the proceedings as early as possible. Parties are directed to appear before the concerned court on 12.11.2013.
In view of the above terms, revision petition is disposed of.
(Paramjeet Singh) Judge September 30, 2013 R.S. Singh Ravinder 2013.10.09 10:03 I attest to the accuracy and integrity of this document Chandigarh