Punjab-Haryana High Court
J.V. Of Unitech Limited And The Lgc Of ... vs State Of Haryana And Others on 7 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR Nos. 2684 & 2685 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: August 07, 2013
1. C.R. No. 2684 of 2013
J.V. of Unitech Limited and the LGC of South Lorea
.... Petitioner
Versus
State of Haryana and others ... Respondents
2. C.R. No. 2685 of 2013
J.V. of Unitech Limited and the LGC of South Lorea
.... Petitioner
Versus
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment? Yes
2) To be referred to the Reporters or not? Yes
3) Whether the judgment should be reported in the Digest? Yes
Present: Mr. Puneet Bali, Sr. Advocate with
Mr. Vibhav Jain, Advocate,
for the petitioner(s).
Mr. Ashwanie Kumar Bansal, Special Counsel for the
State of Haryana-respondent Nos.1&2
Paramjeet Singh, J.
Both the above mentioned Civil Revisions i.e. CR Nos. 2684 Kumar Virender 2013.10.11 15:46 I attest to the accuracy and integrity of this document CR Nos. 2684 & 2685 of 2013 2 and 2685 of 2013 have been listed together for hearing. Both the Civil Revisions are being disposed of by a common judgment. Learned counsel for the petitioner has referred to the facts in CR No. 2684 of 2013. Therefore, for the sake of convenience, facts from this case are being taken.
Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 20.10.2011 (Annexure P/5) passed by learned Additional District Judge, Chandigarh, whereby issues have been framed and order dated 09.04.2013 (Annexure P/11) passed by learned District Judge, Chandigarh, whereby application for review of the order dated 20.10.2011 has been dismissed.
Brief facts for disposal of the present petition are that respondent nos. 1 and 2 invited tenders. In pursuance of the tenders, the petitioner was issued a contract for four laning and strengthening of NH-I from Km. 155.000 to Km. 212.161, Lot HR-II, in the State of Haryana and the petitioner was issued Letter of Award (acceptance letter) dated 18.11.1994. Accordingly, contract agreement was executed between the parties on 17.01.1995. Certain disputes arose between the parties as per the provisions of the contract agreement. The matter in dispute was referred to the Arbitral Tribunal. The Arbitral Tribunal vide its award dated 04.07.2009, awarded a total sum of Rs. 24,60,44,827/- under various heads in favour of the petitioner. Besides this, the Tribunal also awarded interest @ 12% per annum w.e.f. 12.03.2003 till payment and costs of Rs.8,16,800/-. Thereafter, respondent nos. 1 and 2 filed an application Kumar Virender 2013.10.11 15:46 I attest to the accuracy and integrity of this document CR Nos. 2684 & 2685 of 2013 3 under Section 33 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") before the Arbitral Tribunal, for clarification and additional award. After hearing both the parties, the Tribunal gave a clarification/interpretation on 19.08.2009 and application moved by respondent nos. 1 and 2 was dismissed. Aggrieved against the award dated 04.07.2009 and order dated 19.08.2009, respondent nos. 1 and 2 filed an application under Section 34 of the Act before the learned District Judge, Chandigarh. Along with the application, an application under Section 34 (3) of the Act for condonation of delay of 27 days was also filed. The petitioner contested the said application by raising various objections. Rejoinder was also filed which was taken on record. After considering the facts, the learned Additional District Judge Chandigarh, framed the following issues vide impugned order dated 20.10.2011 (Annexure P/5) and afforded opportunity to lead evidence:-
"1. Whether the Award dated 04.07.2009 and additional/clarificatory award dated 19.08.2009 are liable to be set aside? OPP
2. Relief."
Against that, the petitioner preferred an application for review, the same has been dismissed by the learned Additional District Judge, Chandigarh vide order dated 09.04.2013 (Annexure P/11). Hence, this revision petition.
In pursuance of notice of motion, the counsel for respondent nos. 1 and 2 have appeared.
Kumar Virender2013.10.11 15:46 I attest to the accuracy and integrity of this document CR Nos. 2684 & 2685 of 2013 4
I have heard the learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that both the impugned orders are not sustainable in the eyes of law. They are contradictory to the provisions of the Act. Learned counsel further contended that there is no question of framing the issue and thereafter leading the evidence as if the Court is to try the suit. The proceedings before the learned Additional District Judge are akin to an appeal and is not like a civil suit. Learned counsel for the petitioner further submitted that order (Annexure P/11) has been passed on the basis of a judgment titled Amrik Singh vs. Vardhan Properties and Investment Ltd. (P&H) 2006(4) RCR (Civil) 521, which has already been over-ruled by the 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 (Annexure P/12). The learned counsel has further relied upon a judgment of 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 contesting respondents vehemently opposed the contentions raised by the learned counsel for the petitioner and submitted that the impugned orders are sustainable in the eyes of law and there is no illegality or perversity in the impugned orders. The judgments cited by the learned counsel for the petitioner are not applicable in the facts and circumstances of this case.
Kumar Virender2013.10.11 15:46 I attest to the accuracy and integrity of this document CR Nos. 2684 & 2685 of 2013 5
I have considered the rival contentions of the learned counsel for the parties and perused the record.
Admittedly, judgment of Amrik Singh (supra) has been over- ruled by the Division Bench of this Court and after considering various judgments including the Fiza Developers (supra), 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 view of the settled law laid down by the Division Bench in Kumar Virender 2013.10.11 15:46 I attest to the accuracy and integrity of this document CR Nos. 2684 & 2685 of 2013 6 M/s Punjab State Industrial Development Corporation Ltd.'s case (supra) and in the Fiza Developers's case (supra), the issues are not required to be framed in the proceedings arising out of the arbitration proceedings and the evidence is not required to be led as is required in the Civil Court. However, the Court can frame questions 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 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 the case of arbitration proceedings, Court can only frame questions of law for adjudication, this exercise can be undertaken before the Arbitrator as per the provisions of the statute and the proceedings being summary in nature and evidence by way of affidavits can be permitted.
An application under Section 34 of the Act is a single issue proceeding, where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. As such, in view of the settled law specifically the proposition of law laid down in Fiza Developers's case (supra), issues are not required to be framed in Kumar Virender 2013.10.11 15:46 I attest to the accuracy and integrity of this document CR Nos. 2684 & 2685 of 2013 7 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 a 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 corresponding opportunity is required to be given to the respondent to place on record his evidence by way of affidavit where-ever the case so warrants. In certain peculiar circumstances where 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 the provisions of Section 34 of the Act, it is clear that issues as contemplated under Order 14 Rule 1 of the Code of Civil Procedure are not an integral part of the process of proceedings under Section 34 of the Act.
In view of the above discussions, the impugned orders dated 20.10.2011 (Annexure P/5) passed by learned Additional District Judge, Chandigarh and dated 09.04.2013 (Annexure P/11) passed by learned District Judge, Chandigarh are set aside. However, the Court of Additional District Judge/District Judge will be at liberty to frame questions of law for adjudication and may afford opportunity to the parties for leading Kumar Virender 2013.10.11 15:46 I attest to the accuracy and integrity of this document CR Nos. 2684 & 2685 of 2013 8 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.
Both the revision petitions are disposed of in the above terms.
August 07, 2013 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2013.10.11 15:46
I attest to the accuracy and
integrity of this document