Karnataka High Court
Veeramma @! Drakshyani W/O ... vs Nagaratna @ Ratna W/O Late S R Hiremath on 2 September, 2008
Bench: V.G.Sabhahit, S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 2"" DAY OF SEPTEMBER 2oQ8,a,Eff'w
PRESENT
THE HON'BLE MR.JUSTICE vLé}SAEBAHLTff,
AND_
THE HON'BLE MR.JUsTIcE'E,N,sATtANAEA$AfiE "WS
MISCELLANEOUS FIRST APPEAL N5S,2582/§OO2"
C/W"21§fifi2QQ;"{§nV_'
BETWEEN: .»V :»w,f='
Sm:.Veerammaa@"Dfakshayani,
W/o.Revanasi¢dayya,fiiremath,
Aged*about'46ayears.
Occ: Service, r/0 Hubli,
_Qist.Dharwad. V
.'v,Kum.Veéna,
'V,D!¢zReVanasiddayya Hiremath,
.'1Agédfabofit 26 years years,
A,Studenti
"R/o Hubli, Dist.Dharwad.
.*:,Kufi}Geetha,
C/o Ravanasiddayya Hiremath,
'Aged about 25 years years,
Student,
R/0 Hubli, Dist.Dharwad.
. Common Appellants
(by Sri. G.R.Anandanimath &
AND:
E.
Jayakumar S.Patil, Advs.)
Nagaratna @ H.Ratna
W/o late S.R.Hiremath_ A
Aged Major, Occ; not.known,"V
R/o Hubli, Dist.Dharwadf'
Anand, _ g _ _V .
Father's name not'kn0wm3
Age Minor, by his gga:diang aTa'
Natural mgthar J 1
Nagaratna @,H.Ratna* _.
Ag¢aWMaj§;,"§éc}Rfiot kfibwn,
R/0aHubli}flD;st:Dharwad.
Basavagajvsgficrafigi
Age maj0;,'Occ§.Sbcial Worker
.R/at~Pinto.Road,
'Hflb$i,*Dist{Dfiarwad.
",R;S;fi:£emé:h,
"Age Major} Occ: not known,
A.R/avNo{l22, Mahantesh Nagar
Eelgaum.
. '*Kaiiappa J.Ta1awai
=_Age Major, Occ: not known,
R/a Old Hubli,
Hubli, Dist.Dharwad.
6. G.S.Ginimav
Major, Occ: Business,
R/a Sharada Printing Press
Dajibanpeth,
Hubli, Dist.Dharwad.
7. S.R.Puttanshetty V .2 t
Age Major, Occ: not'known;, V at ,<_
R/a No.65/1, Heggerixoolony'g =,f
(extension), Old Hubligv , "~
Hubli, Dist.Dh3rwad;""*"' _
*,"_g_Commen»Respondents
(by sri.c.arakash,VG;a;$hiyakaaag;;"
Advs for Rifl& 2 _V p"*j,v j
Sri.D,CgShivakumara Swamy, Adv for R3-7)
MFA No,2582§2OG2 is filed u/S 39 of the
Arbitration "Aet7 against the order dated
16.6.99 passed in Misc,Case No.21/90 on the
file of the Aadigcivii Judge, Sr.Dn., Hubli,
rejecting V.thei; petition filed by the
petitioners u/s;3o r/w Sec.33 of Arbitration
;"'ActJ seeking to meet aside the Arbitration
'. Award passed on 3.8.1987 by the Arbitrators.
'_*{mrA§x§.é164/2001 is filed u/S 39 of the
Arbitration 'Act against the judgment and
_decree dated 16.6.1999 passed in Arbitration
~_t'Qase NQQE/1989 on the file of the Addl.Civi1
. Judge (Sr.Dn), Hubli, allowing the petition
._'filed§ under Section 14 of the Arbitration
-Act;"
These appeals coming on for Hearing this
id',i;day, SABHAHIT J., delivered the following:
JUDGMENT
These two appeals arise out of the: order"i"'"
passed by the Additional Civil .Judge ifSrgfifi};a ' Hubli in Arbitration case'; }§o;"2/11s,>r_8"9_."
Misc.case No.21/1990, wherein the .applioatiofi filed under Section 30 r/Vw__ui'S,ect_ion.'33:_offi the Arbitration Act, 194'o'41.'i{'t_1_ne_ short) has been dismissed_ as~~ barred l7§yfo"time in Miscellaneousi ;Ca5et&€_No.éi[1§9G*' and the applioation_fiied finder Section 14 of the Act in Arbitration Case §or2fii999 was allowed by order dated_16.6.l99§;-r " J2. aha eaaential facts of the case leading up to these tao aypeals are as follows. l*i;°An application was filed by the Arbitrators . for oaking the award passed by them as Rule of "(toe Court under Section 14 of the Act and the same was numbered as Arbitration Case No.2/198$ on the file of the learned Additional Ciiiide Judge (Sr.Dn). Hubli. After service cfl3inotieei*-i. in the said arbitration case, an applicatien was filed under Section Section 30 read Qith Sectienw5e 33 of the Act by party Nos'.-3;, :I:_};'--md 1' arbitration proceedings to set_aside the award passed by the Arbitretorsi and ythe same was numbered as Misc.Case No.2ifi§9G.7i in the said petition it was aserred that the efifird passed by the Arbitretors eas,iia5Le to be set aside on the grounds pssy3firqed";in fthe application and cause of xaction "for *thé petitioners arose on 30.12§1989 ehen" a dnotice of the application 3 «finder Sectien 14 er the Act was served and the 'Vip--eVti~tionV'=sIesf~f:i~led on 15.1.1990. In M1sc.Case No@2[i989} the guradian of petitioners 2 and 3 3*~, was examined as PW.1 and no objections were 'filed§ by the respondents in Misc.Cese V..."""'z~:¢'.;21/1990. The court of the Additional Civil %.
E: Q/\..r '~./ Judge (Sr.Dn), Hubli by order dated 16.6.1999 disposed of both the proceedings, wherein xtheW. Arbitration Case No.2/1989 was allowed bobfif%_d_ negativing the contention of the learned counsel _u for the parties I, III and lVd thatr sing; _f objections have been filed to the award seekingd for setting aside the award in_Nusc.NoL21}id§O; the same has to bej considered fiaiongi Qitfi the said proceedings and by holding that objections have to be filed in the same sgtitiofi and cannot be filed Ssebarateiggelfieifigi aggrieved by the same, fiEA;2lnsf2§bi is filed by party Nos.I, III and IV in"'--A;:bitiE':at'i.or: ibaéé No.2/'1989. «._"3.;""i:Th'§»~ii.._Misc.case No.21/1990 was dismissed icy; -tngé limitation by holding that in view of thesbrovisions of Article 119(b) of the R"", Limitation Act coupled with the Ruling in ILR x<.iiS93fKAR 3412 and Section 33 of the Act, since .Rwe:the petition is not filed within 30 days from 7 the date of notice of filing of the award in the Court and the applicants had appeared sin Arbitration Case No.2/1989, the said petitiénft was barred by time and accordingly, dismissed as '--' such. Being aggrieved by . the' lsaeefii thee' applicants before the Additional" Civil_ Jed§ei7r (Sr.Dn), Hubli preferred fi%Ei¥oI258éf2Q0%;fikW%%£
4. We have heard_ the, Counsel for the parties. ,_ ,m,ix h V 5f_The learned Counael for the appellants 'in MFA.N¢i258222Ooé'sfiteitted that it is clearly averred"_in the "petition numbered as Misc.Case fi_'fio.2i/ié§e"£i1edVfifiaer Section 30 r/W 33 of the iAct,thaththeKnotice of award having been filed in the Cofirt was served upon the applicants on '.,r3o.12.1989 and the petition is filed within 30 "daysJfli.e., on 15.1.1990 and no objections have ('1 \§&% been filed by the respondents, the order passed g by the court below is liable to be set aside; ed*d*'d
6. The learned Counsel lfurtherdkeuhmitted pen that the order passed» inV Arbitratiene ease No.2/1989 is also liable to set és5.§:ae,': the reasoning given by ?--the 5.Court%l belowh for negativing the contention 5: the annellante that objections filed to Miscfcaee Neafii/1990 should also be €_coneidered"3 along 3'with the said Arbitretlcn ease fiC;'2719§§ nfi holding that no separate petltion can be filed under Sectien 33 of the A<:t"'~.andVobAj.ectlons have to be filed in '3"«the..':_jappl:icVation'~fi.l'ed under Section 3.4 of the hakct in firbitration Case No.2l1989 and since no objectione age filed a eeparate petition is not 'Vmaintainable, is erroneous. In support of his dd :=centention he has relied upon the decision of .j the fion'ble Supreme Court in the case of Medan h'"Lal wve- Sunder Lal, reported. in AIR 1967 SC \g%%.
1233, wherein the Hon'ble Supreme Court after_ narrating objects of the provisions of fiettionsbpx contained in Chapter II of Arbitration Act! igéoi as also the provisions of Section 1é"and*33 asst 7 observed that a separate petition can be filedV for setting aside the w award * subject] Wto limitation prescribed...V.und.e'r"A.';P;i*tir;le fli3§'1'9(bVE) of the Schedule to the if the objections are.tfiledi is: thefl application filed under Sectisnfili of figs Arbitration Act within 30 days free the date as service of notice, the same cafi_also be treated as an application under Section 3§;_andV wherefore, the learned Counsel w.submits that the order passed by the Additional dgCi§il_ Jndgep"{$r.Dn), Hubli is liable to set aside.' V _ r g7. We have given anxious consideration to x"%_the contentions of the learned Counsel for the uiaxeppellants.
10
8. It is clear from. persual of the order passed. by the Additional Civil Judge (Sr.Da}g Hubli, in Arbitration Case No.2/1989,_dated:id 16.6.1999 impunged in MFA.No.2164/2001 H Court below has proceeded on the baaia that whenrz an application is filed under; Section, ;4,,*¢o,'- separate application/petition can be filed finder Section 33 of the Act and objectionsr if an§, to the award has to "he nfiledl in _the same application *and daincéiino cohjections are filed within y3o«--daY$}lfther%application filed under Section 14 has been allowed and the contention 'hWof the learned Counsel for the appellants that lAMiac;Caae*21?199O should also be taken up along with 'the eapplication, as any finding given in ' the llaaidhd petition would also affect the udlpproceedings in Arbitration Case.No.2/1989, has fjheenlnegatived.
\jq,i 12 considered and allowed by making the awaFQd§fiier% of the Court and wherefore, the order passed h§V "
the learned Civil Judge (st.any.7_Hutii;":t Arbitration Case No.2/1989 dated "i6.6{i999.5£tT*f erroneous and same is liable to be set asidelv "
10. It is clear' from fthe"ipersua1 of the order passed "in hfisclCasgi Ho,filfl990 dated 16.6.1999 _tfiat5 the ,sat¢ korderhwfiassed by the learned §ivil"J9dge :9t}a§y; Eubli, is erroneous and unsustainable in §iew.Qf the reasoning given by the learned Civil fiudge (Sr.Dn), Hubli, for holding_that the abplication is barred by time iisiunsfistainable. iiiii wIt is clearly averred in the iVpét1t1§n that the notice of filing the award in the_VCourtfi;fias served upon the applicants on *,30.12;l989 and. the application is filed saithin "t3Q:§§ays i.e., the petition was filed on " 15.1.1990. However. the trial Court has proceeded on the basis that since the applicants \§%% of 13 had appeared in Arbitration Case No.2/198? add 2 have not chosen to file any objectionsiiindither "
said case and the application, filed' uhderx' Section 33 of the Act has been? fileda ofiiyf to 7] overcome the provisions "Of";the *Limitati§h~ Eat and has failed to oonsiderdta$*,to twaetheri the application filed isk withifl i3@ 'days from the date of service of »notice :of htiiihg of the award, whiohida§did_hbefl the Eatartihg point of limitation for eoahtihd the pégiaa of limitation 30 dayai for" filihd _anH appiieation to set aside an award under Seotioh,33 of the Act. In the basence of" oonsideration of the material faot, it 13 eiear that the order passed by the learaeza'«TAdd::.<tidr:a:1----.Civil Judge (Sr.Dn), Hubli, diggp MiaC.CaseiNo§2§f199O is also liable to be_set iwaside.
.\\&%P in view of our finding that the order in M:'Lsc.Case No.21/1990 and Arbitration \3-.§* 14 Case No.2/1989 passed by the learned Additioaalctx Civil Judge {Sr.Dn), Hubli, dated 16.5:i999fi$**l"
cl.-
liable to be set aside, it :ig "clear {tfia& the H matter is now liable to be remitted to the.Coart, * below to pass fresh ordera tin haccfikdahcéi with law and in the light of the brihciple"laid down by the Hon'ble Suprefie Coast iafifiaaanaLal's case referred to 'above "Ana; tot ais§asé of the applicatioasrpetitioae atreaajia accordance with law. _:p_'igilgigalfagaeibéiaari that both -the petitioes_3hai;,§eclabbedftogether and disposed of in accordance with law} a".Vl'l2f'Accordifi§lf, we pass the following:
ORDER l'.el*MFA.No.2582/2002 and MFA.No.2164/2001 are V"t " allowed. The order dated, 16.6.1999 passeda in Vl=,_b<.Misc.Ca3e No.21/1990 and Arbitration Case \§r?
15 No.2/1989 dated 16.6.1999 passed by the ieeehee TV Additionai Civil Judge (Sr.Dn}, Hehiié'-..;,eijeetiT' aside. The Misc.Case No.21/1999 end hrhitiepieh' 3 Case No.2/1989 are remitted 'to Vthe iCpfirt*nof*i' learned 'Additional Civil 'aeage iSreDni} "fiehiig to dispose of both the pafiifiphs in éccoraance with law after affor3ihg'ba£fiie% e? substantiate their conten§iéha_iui9§¢%1d§d§% Qi%fiaiaw and in the light ,c£i,fihe{1peie¢ipiee{hieief down by the Hon'ble..Sg§r§d%5_C§fi££i"ih__fiadan -------- Lal's case referred to aboveJ[A xi V i The appeals aré"dispoSed"§fe&c§didingly. sd!-'L. judge sa!-§__ judge N$Vi