Karnataka High Court
Karnataka Slum Clearance Board vs H.T. Annaji And Anr. on 21 April, 2006
Equivalent citations: AIR2006KANT241, AIR 2006 KARNATAKA 241, 2006 (4) AIR KANT HCR 455, 2006 A I H C 2501, (2007) 2 KANT LJ 468, 2006 ARBILR(SUPP) 267
ORDER Chidananda Ullal, J.
1. The petitioner in the above C.R.P. had challenged the order dt. 31-3-2003 in Arbitration Case No. 1/2001. The Arbitration case was dismissed on the ground of delay.
2. Before proceeding further, I feel it appropriate to narrate in brief, few facts of the case relevant to decide this C.R.P. which are as here under:
(i) That the petitioner had filed Arbitration case in A.C. 33/1998 on 3-11-1998 under Section 34 of Arbitration and Conciliation Act, 1996 to set aside the award dated SIS'1989 passed by the Arbitrator before the City Civil Court, Bangalore (henceforth for convenience referred to as 'Bangalore Court') to challenge the award passed by the Arbitrator in respect of certain dispute between the parties that arose in the matter of construction of 320 apartments in R.S. Nos. 210, 211 and 219 of Hunasikere in Hassan District and the construction in question was for the benefit of the slum dwellers. The arbitrator was the Chairman of the Housing Board, Bangalore, the petitioner herein. The Bangalore Court has rejected the Arbitration case on the point of jurisdiction; however, the Bangalore Court had ordered for return of the case papers in the Arbitration case in question to present the same by the petitioner before proper Court.
(ii) That the petitioner had in the earlier round filed an Arbitration case in C.A. No. 1/1992 against the very respondent, before the Court of Civil Judge (Sr. Dn.), Hassan (for convenience, henceforth referred to as 'Hassan Court') also, in respect of dispute that arose between the parties. It is pertinent to add in this context that the said dispute arose also with regard to the very same construction of apartments by the respondent. While filing the said Arbitration case before the Hassan Court, the petitioner had contended that the Hassan Court had jurisdiction to decide the same.
(iii) That the petitioner herein, later had collected the case papers in A.C. No. 33/1998 from the Bangalore Court at 5.00 p.m. on 6-12-2001 and represented the same on 7-12-2001 before Hassan Court.
(iv) That the impugned order now under challenge in this C.R.P. was passed by Hassan Court upon hearing both the contending parties subsequent to representation of the case papers in A.C. No. 33/1998 as stated above of the said Arbitration case, the same was renumbered as A.C. No. 1/ 2001 by the Hassan Court and upon hearing both the contending parties, the Hassan Court had passed the impugned order, in passing whereof, the Hassan Court had held firstly that there was a delay of 1012 days in filing the Arbitration case in question and secondly and more importantly that there was no bona fide prosecution of the case by the petitioner before the Bangalore Court. On the said twin grounds, the Hassan Court dismissed I.A. No. 1 for condonation of the delay of the petitioner; consequently, the Hassan Court dismissed the very Arbitration Case No. 1/2001 of the petitioner.
3. Having been aggrieved by the said order passed by the Hassan Court, the petitioner herein challenged the same in the instant C.R.P.
4. The learned senior counsel, Sri A. B. Patil had vehemently argued that the petitioner bona fide believed that Bangalore Court had the jurisdiction to decide the Arbitration case since the Chairman of the Housing Board was the sole arbitrator and that the arbitration proceedings between the parties had been held by him in Bangalore and in that bona fide belief the petitioner had not only filed the Arbitration Case in No. 33/1998 along with I.A. No. 1 to condone the delay in filing the said Arbitration case and further prosecuted the same in all seriousness and diligence. He had also argued that, in passing the impugned order, the Hassan Court had failed to appreciate that under Section 14 of the Limitation Act, the petitioner was entitled to for exclusion of time the petitioner had spent in bona fidely pursuing the Arbitration case originally initiated before Bangalore Court, with bona fide belief that, that Court had jurisdiction.
5. In support of his argument, Sri A. B. Patil had relied upon the following decisions:
1) AIR 1929 Privy Council 103.
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3) .
4) .
6. On the other side, the learned Counsel appearing for the respondent-Sri S. Krishna-swamy counter argued that the Hassan Court had passed a just order in the case, based on the true facts and circumstances of the case and there is no error therein. He pointedly argued that the petitioner had filed Arbitration case before the Hassan Court also, in respect of a dispute that arose between the very parties also in respect of the construction of apartments in question and as such, it could not be in the comprehension of the petitioner to initiate Arbitration case before the Bangalore Court when dispute was decided by the Chairman of the Housing Board as the sole arbitrator. He also submitted that it is fallacious for the petitioner to argue that the Bangalore Court has jurisdiction to try the Arbitration case the petitioner had filed before the Bangalore Court.
7. In support of his argument, Sri Krishna-swamy had filed the following decisions:
1) Limitation Act by Mitra, Pgs. 450, 451.
2) .
3) AIR 1923 Mad 114.
4) .
5) .
6) AIR 1921 Mad 654.
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8) .
9) .
10) .
11) .
12) AIR 1933 Lah 264.
8. I have carefully considered the argument and counter argument advanced by the learned Counsel appearing for the contending parties in the light of the respective decisions cited as above. Now the questions that arise for my consideration are as follows:
(a) Whether there was justification on the part of the petitioner to file A.C. No. 33/1998 before the Bangalore Court.
(b) Whether pursuing the Arbitration case before the Bangalore Court can be termed as bona fide on the part of the petitioner.
(c) Whether the petitioner is entitled to for allowance of that period of pursuing under Section 14 of the Limitation Act.
9. My answer to the above three points are in the negative for the following reasons:
It is an undisputed fact that the petitioner had originally filed Arbitration case before Hassan Court to challenge the award passed by the Arbitrator in respect of a dispute between the contending parties also in respect of the very construction of flats in Hunasikere at Hassan. If that be so, there was no reason, cause or excuse to file Arbitration case before Bangalore Court, when the earlier dispute was decided by the Arbitrator in respect of the very same subject-matter.
10. To me, it appears that the petitioner with mala fide intention filed the Arbitration case before the Bangalore Court, probably to buy time. I for one, therefore cannot accept the argument of the senior counsel for the petitioner Sri A.B. Patil. I should not miss to mention in this context yet another aspect of the case that the petitioner having filed the Arbitration case before the wrong Court in Bangalore Court, when the petitioner collected the case papers from Bangalore Court to represent the same before the Hassan Court; the petitioner would not have taken more than 24 hours to represent the case papers before the proper Court in Hassan Court, but the petitioner had taken three days to represent the papers on the pretext that the counsel for the petitioner had suffered heart attack and as such, he could not re-present the papers well in time before the Hassan Court.
11. In the facts and circumstances of the case, it appears to me that right from the beginning, the petitioner was not showing diligence in the matter of pursuing this case before the Bangalore Court as well as before the Hassan Court. Therefore, I do not find any merit in the instant C.R.P.
12. The instant C.R.P. as such, had to be not only dismissed, but be dismissed with exemplary cost to be paid by the petitioner to the respondent. That cost I fix at Rs. 10,000/-. That I do by taking note of the conduct in adopting dilatory tactics to put the respondent into injury and loss, knowing well that the respondent was a contractor and he had invested huge money in the construction business of his.
13. The awarding of exemplary cost as above, is for special reasons; firstly that the petitioner had filed the original Arbitration case for his own default in filing the original Arbitration case before the wrong Court in "Bangalore Court" and that he had not represented the said case before the proper Court, before "Hassan Court" well in time, and secondly that the respondent-contractor had to defend himself in the instant C.R.P., though he had not committed any default from his side, and as such, the instant case is a case imposed on him by the conduct of the petitioner in filing the Arbitration case and further prosecuting the same before the wrong Court, without there being any bona fides thereto.
14. That cost the petitioner shall pay to the respondent within three months from this day. In the event the petitioner were to fail in the matter of payment of the above cost, the respondent is at liberty to recover the same in the process known to law as if the respondent is holding a money decree for the like sum as against the petitioner.