Delhi High Court
M/S. Bhagwan Dass Bros. vs Ghulam Ahmed Dar And Others on 6 May, 1991
Equivalent citations: AIR1992DELHI22A, AIR 1992 DELHI 22, (1992) 1 ARBILR 346 (1992) 1 PUN LR 20, (1992) 1 PUN LR 20
ORDER
1. This order will dispose of these two applications. They have been filed by the defendant judgment debtor in the suit. The facts leading up to the filing of these two applications are in a very short compass. An arbitration award dt. 15-10-88 made by Shri V. D. Mishra, an Ex-Judge of this Court and a retired Chief Justice of the Himachal Pradesh High Court was filed in this Court. Notices of filing of the award were served on the parties. Objections to the award were filed on behalf of the defendant/ applicant herein. These objections were registered as I.A. No. 2278 / 89.
2. After the matter was ripe for hearing it was listed in Court on 15-3-90. No one appeared on that date on behalf of the objector and the matter was adjourned to 27-7-90. On 27-7-90 also none appeared in Court on behalf of the Objector. A perusal of the order sheet of that date shows that the matter was called out twice. Obviously, therefore, the matter must have been passed over on the first call. I. A. No. 2278/89 was dismissed on that date and the award dt. 15-10-88 was made a rule of the Court. It was also ordered that a decree be prepared in terms of the award and that the award will form a part of the decree The decree dt. 27-7-90 was also drawn up.
3. On 31-8-90 the decree holder filed Ex. No. 142/90. On 3-9-90 i.e. after 37 days of 27-7-90 the judgment debtor/ defendant/ applicant filed I. As. 7250-51/ 90. No application u/ S. 5 of the Limitation Act has be en filed. I.A. 7250/90 is an application under 0.9, R. 13 of the Civil P.C. (for short CPC) praying that the ex parte decree be set aside and the objections be restored, heard and decided on merit. The other application is u/ S. 151 of the CPC, praying that the operation of the "ex parte" decree be stayed. Notices were issued in these applications and replies have been filed. It may be noticed here that vide order dt. I 1- 10-90 conditional stay of the execution of the decree was granted and the judgment Debtor was directed to deposit within two months from the said date, an amount at the rate of Rs. 1,400/- per month w.e.f. October, 1982. The judgment debtor failed to do so.
4. Inter alia it has been avered in the restoration application that on 15-3-90 the objector's counsel came to the Court fully prepared for arguments but reached late. It is further stated that on enquiry by the said counsel he was 'informed' that the case had been adjourned and that counsel mistook the date of next hearing as 27-8-90 instead of 27-7-90. It is, therefore, alleged that on account of the. bona fide mistake with regard to the date of hearing neither the objector nor his counsel appeared on 27-7-90. It is, however , not stated as to who 'informed' the said counsel. It is alleged that neither of them was aware of that date of hearing until inspection of the file was carried out on 31-8-90. Photocopies of the relevant pages from the diary of the advocate of the objector dated 15-3-90, 27-7-90 and 27-8-90 have been filed to show that a bona fide mistake regarding the date occurred: The decree holder has filed a reply in opposition to this application. Along with the reply a photocopy of page 14 of the cause list of the Original Side of this Court for 27-7-90 has been filed as annexure 'B' to show that Mr. Issar had another case in this Court on that date before another learned Judge.
5. Mr. V. M. Issar, learned Advocate for the applicant/ respondent /judgment debtor referred to the order dated 27-7-90 and urged that an ex parte decree was passed because no one had appeared on behalf -of the objector/ applicant on 27-7-90. Consequently, he submitted that an application under 0. 9, R. 13 of the CPC being I.A. 7250/ 90 has been filed for setting aside the ex parte decree. Mr. Issar conceded that he did attend to the hearing of the other case on that date before another Bench in this Court. He, however, submitted that this fact buttressed his argument that because of the bona fide mistake about the date of hearing in this case he could not appear when this case was called out for hearing. Otherwise he submitted that having come to the high Court there was no reason why he should not have attended to this case also. According to him the fact that he came to the High Court on 27-7-90; although admittedly he generally practises in the District Courts; strengthens the case of the objector regarding the mistake of his counsel in noting the date of hearing in this case.
6. Mr. Issar submitted that the objections filed by the objector being 1. A. .2278 / 89 had been dismissed because no one had appeared for the objector on 27-7-90. He submitted that they were neither considered nor disposed of merits. He, therefore, submitted that the application for restoration of the objections and for their disposal on merits should be allowed and the dismissal of the application containing the objections should be restored, heard and disposed of on merits. He relied upon the judgment of this Court in the case of D.A. Shahni v. H. D. Mehra, reported in 1979 Rajdhani LR 204 that if an advocate had wrongly noted the date of hearing in his diary and he filed an affidavit in this regard then normally such an affidavit should be accepted, as correct and on that basis an, application under 0. 9, R. 13 should be allowed. Mr. Issar urged that no appeal would lie u/S.39 of the Arbitration Act (for short the Act) against the order dt. 27-7-90 or the decree in compliance with said order in view of the provisions of S. 17 of the Act. Mr. Issar submitted that all that was being Sought was a hearing in support of the objections.
7. In opposition to the applications Shri Kanwal Narain, learned advocate for the decree holder/ non-applicant has raised three main contentions. His first contention was that when the Court passed an order under S. 17 of the Act, no application under Or. 9, R. 13 was maintainable. Secondly, he submit; ted that the order dt. 27-7-90 was an appealable order and the applicant should have appealed against the same. Thirdly he submitted that the application under 0. 9, R. 13, CPC apart from not being maintainable, was barred by time and no application under S. 5 of the Limitation Act had been filed seeking condensation of delay. He submitted that on this short ground alone the application deserved to be dismissed. He also urged that even on merits the application under 0. 9, R. 13 deserved to be dismissed, as the conduct of the applicant had been to delay the matter not only in this case but in another case instituted by him against decree holder because such delays enured to his advantage.
8. It is not in dispute that u/ S. 41 of the Act, the provisions of CPC are applicable to all the proceedings before the Court under the Act, subject of course, to the provisions of the Act and the rules made there under. S. 141, CPC also provides that the procedure provided in, the Code in regard to suits shall be followed as far as it can be made possible in all proceedings in any court of civil jurisdiction. Mr. Kanwal Narain, however, urged that the provisions of 0. 9, R. 13, CPC did not apply to the proceedings u/S. 17 of the Act. He submitted that under S. 17 of the Act where an award is made a rule of the Court that is because the Court does not find any reason to set aside or remit t ; he award. The decree is made only as a consequence of the award having been made a rule of the Court. There fore; according to him, no application under 0. 9, R., 13, CPC would lie. He has referred to a judgment of the Division Bench of the Andhra Pradesh High Court in the case of Govt. of Andhra Pradesh v. Bactchala Bala iah . He has made special reference to the para 29 of this judgment where it has been observed that :-
"Having regard to the reasons given above, we have no hesitation to hold that the provisions of 0,. 9, R. 13, CPC will not apply to the decree passed under S. 17, Arbitration Act, in terms of the Award filed in the Court by the arbitrators ......."
8A. Mr. Issar did not cite any authority in support of his contention that when an order is passed making an award a rule of the Court in the absence of the objector and without hearing the objector then such an order or the decree can be set aside under 0. 9, R. 13, CPC. He, however, asserted that the objector had a right to be heard and he should not be deprived of this right.
9. Before dealing with the point, whether or not application under 0. 9, R. 13, CPC would lie, as per rival contentions, certain situations that may arise; after the award is filed in Court; need to be noticed. It may be that:-
i) An order u/ S. 17 of the Act may be made ,whereby the award is made a rule of the Court, even though the notice of filing of the award in the Court may not have been sent to the parties.
(ii) Such a notice may have been sent to the parties but they may not have received it and an order under S. 17 of the Act making the award a rule of the Court may have been passed.
(iii) Such a notice is sent and received by the parties but the time for filing objections as per Art. 119(b) of the Limitation Act 1963 may, not have elapsed and an order under S. 17 of the Act may have been made making the award a rule of the Court.
(iv) The notice may have been sent and served and the time limit for filing objections may have elapsed and no objection against the award are filed; hence an order under S. 17 of the Act is passed making the award a rule; of the Court.
(v) A notice of the filing of the award is sent and served and objections are filed within the time prescribed but on the date of the hearing of the objections the objector or his counsel is unable to appear and an order is made under S. 17 of the Act, making the award a rule of the Court.
10. In the case of Govt. of Andhra Pradesh v. Bactchala Balaiah (supra) no objections under S. 30 of the Act had been filed and an order under S. 17 of the Act was passed making the award a rule of the Court and a decree was drawn up in terms thereof. In Balaiah's case (supra) the following judgments have been noticed on the point that an application under 0. 9, Rule 13, C.P.C. would not lie if an award had been made a rule of the Court under S. 17 of the Act and a decree drawn up in terms thereof -.
(i) Two judgments of learned single Judges of the Calcutta High Court in the cases of (a) Ganeshmal Bhawarlal v. Kesoram Cotton Mills, and (b) Soorajmull v. Golden Fibre Products, .
(ii) A Division Bench judgment of the Patna High Court in the case of Rajeshwar Pd. v. Ambika Pd. .
(iii) A judgment of a learned single Judge of the Rajasthan High Court in the case of Ram Chander v. Jamna Shankar, .
(iv) A Division Bench judgment of the Madras High Court in the case of Alvel Sales v. Dujadwala Industries, .
11. In the case of Ganeshmal (supra) no notice of the filing of the award in the Court was served on the defendants and the decree was passed before the expiry of the time for filing objections to set aside the award. The view taken was that the limitation applying to set aside the award never started to run. The learned single Judge also observed that (Para 25):-
"In my judgment in spite (sic) of S. 43 (sic) of the Arbitration Act and S. 141 of the Code strictly the provision of 0. 9, R. 13 does not apply to proceedings for setting aside an ex parte decree passed under S. 17. In a suit there is a plaintiff and defendant and 0. 9, R. 1.3, deals with them differently; strictly neither party to an award is a plaintiff or defendant and both parties are entitled to ask the Court, to pronounce judgment according to the award. In a suit if the plaintiff does not appear no decree can be passed and if the defendant does not appear the plaintiff must prove his case. Under S. 17 a judgment must be pronounced and a decree must follow, if the conditions of Ss. 14 and 17 are complied with. Such a decree even if pronounced in the absence of the parties cannot be said to be passed as ex parte so as to attract 0. 9,.R 13.... 0. 9, R. 13 enables the Court to set aside an ex parte decree in the case where the summons was not duly served but it does not provide for a case where the decree under S. 17, Arbitration Act, is passed without complying with its mandatory provisions and before the expiry of the time for applying to set aside the award. The provision of 0. 9, R. 13 of the Code cannot be made applicable to the proceedings for setting aside a judgment pronounced under S. 17 of the Arbitra tion Act."
12. In Ganeshmal's case (supra) the decree passed under S. 17 of the Act was, however, set aside following the principles of 0. 9, R. 13, C.P.C. because it had been passed without notice of filing of the award or without expiry of the time for applying to set aside the award. In those two circumstances such a decree was held to have been passed irregularly. These grounds were held to be good for setting aside the ex parte decree. It was also observed that (Para 26) :-
"It is a settled law that the Court has the inherent power and duty to correct injustice and to set aside a judgment and order passed ex parte without notice to the party ...........
13. 1 must observe with respect that the observations of the learned single Judge in Ganeshmal's case (supra) that in a suit if the plaintiff does not appear no decree can be passed and if the defendant does not appear the plaintiff must prove his case, is not absolutely correct any more, after the amendment of the 0. 8, R. 10, C.P.C. in 1976.
14. In Soorajmall's case (supra), the judgment of Kesoram's case (supra) was followed and in paragraph 12 it was observed that "under S. 15 a decree may be pronounced in the absence of the parties even then it cannot be said that the decree has been passed ex parte." It may be noticed that in this case in spite of service of notice of filing of the award in Court no objections to the award for setting it aside had been filed at all till the award was made a rule of the Court; which was done much after the period of limitation for filing of the award had expired.
15. In the case of Rajeshwar Pd. (supra) the matter had been referred to Arbitration under S. 21 of the Act. One of the parties therein was a minor through his natural guardian, viz. the father. The father was also a party to those proceedings and he had filed objections to the award under S. 30 which was on his own behalf only and not on behalf of the minor, even though he represented the minor. In this case it was held that it could not be said that a decree passed on award was an ex parte decree within the meaning of 0. 9, R. 13 of the C.P.C. against the minor.
16. In the case of Alvel Sales (supra) it was held that a notice, according to law, of filing of the award in Court had been served as required under S. 14(2) of the Act. No objections to the award were filed seeking to have it set aside or remit it. On an application filed by one of the parties the award was made a rule of the Court and a decree was passed in terms of the award. This was sought to be set aside on the ground that the decree was an ex parte decree. Following the view of Patna High Court in Rajeshwar Pd.'s case (supra), the Madras High Court held that the said decree was not an ex parte decree. It was also observed that even otherwise under the Limitation Act the period for seeking to set aside the award had expired.
17. Coming back to the judgment of the Andhra Pradesh High Court in Balaiah's case (supra) it is worth noticing that in paragraph 6 of the judgment the observations of the learned single Judge of the Calcutta High Court in Ganeshmal's case and the reasons behind those observations have been noticed and analysed. They are that; in a Civil suit there is a plaintiff and a defendant and if the plaintiff does not appear, the suit will be dismissed and no decree can be passed. However, if the defendant does not appear then the plaintiff will prove his case and an ex parte decree will be passed and it is such an ex parte decree that can be set aside under 0. 9, R. 13 if the defendant satisfies the Court that summons was not duly served or that he was prevented by sufficient cause from appearing when the suit was called for hearing. However, since, in a suit for making the award a rule of the Court neither party is either plaintiff or defendant and both parties are entitled to ask the Court to pronounce the judgment according to the award. Therefore, it has been observed that such a decree, even if pronounced in the absence of parties, cannot be said to be passed ex parte, and consequently the question of applying 0. 9, R. 13, C.P.C. for setting aside the decree does not arise.
18. In the judgment of the Andhra Pradesh High Court in Balaiah's case as well as the judgments noticed in the said case, the situation as noticed in paragraph 9(l) to (iv) may be said to be covered. However, the factual position of the type noticed in para 9(v) did not arise in those cases. In none of those cases was an order passed under S. 17 for the award to be made a rule of the Court and a decree passed in terms thereof after the objections had been filed and dismissed because at the hearing of those objections counsel or the objector failed to appear. It appears to me, with respect, that after the objections are filed, the objector is entitled to show that the conditions as mentioned in Ss. 14 and/ or 17 of the Act have not been complied with and that good grounds exist for either setting aside the award or remitting it, Therefore, if after having filed the objections to the award the objector or his Counsel is unable to appear when the objections are taken up for hearing and if the application containing the objections is dismissed resulting in the award being made a rule of the Court and a decree being prepared in terms of the award then it may be difficult to accept the absolute proposition in law that the provisions of Order 9, Rule 13 would not apply or for that matter that such a decree would not be in the nature of an ex parte decree.
19. The reasons given by the learned single Judge of the Calcutta High Court in Ganeshmal's case for considering the provisions of S. 17 to be mandatory in nature and for distinguishing a suit filed for making the award a rule of the Court with another suit and for coming to the conclusion that a decree passed under S. 17 cannot be said to be an ex parte decree, may not necessarily be a good reason after the amendment of 0. 8, R. 10, C.P.C. The other judgments have followed the observations of learned single Judge of the Calcutta High Court.
20. With great respect I am of the opinion 'that the principles of 'audi alteram pattern' regarding hearing both sides is a principle of natural justice. Principles of natural justice are ingrained in Art. 14 of our Constitution. Section 17 of the Act also provides that if an application to set aside the award has been made then the Court shall proceed to pronounce the judgment according to the award "after refusing it", meaning thereby after refusing the application for setting aside the award. Such a refusal, if made in the absence of a party would no doubt be an ex parte refusal. Therefore, it is equally mandatory under S. 17 of the Act that when an application for setting aside the award is made, it must first be refused before the Court can proceed to pronounce the judgment according to the award after which the decree follows. Therefore, if such an application is refused and if it is done because of the nonappearance of the objector or his counsel and without hearing the objector or his counsel then it is difficult to accept that it is not an ex parte decree. If the Court proceeds to pronounce judgment according to the award; where after the decree follows; it cannot be said-that such a decree is not in the nature of an ex parte decree.
21. In none of those cases, noticed above, the facts were similar to this case as no objections had been filed against the award and there was no occasion in those cases to consider the scope of the words "after refusing it" appearing in S. 17 of the Act. If on the facts and in the circumstances as in the present case it were to be construed that even if the objector or his counsel has been-unable to advance arguments because of sufficient cause for non-appearance when the matter came up for hearing and yet they cannot maintain an application under 0. 9, R. 13; C.P. C. in spite of provisions of S. 41 of the Arbitration Act and S. 141 of the Code then it may very well be that the vires of the provisions of the S. 17 of the Act may be open to challenge. In any event, on facts, this case is clearly distinguishable from Balaiah's case (supra) and cases noticed in the judgment of Balaih's case. However, in view of the observation, in absolute terms, in paragraph 29 of Balaiah's case as noticed above, with which I am in respectful disagreement I would have referred the matter to a larger Bench for consideration of this application on this point. But, since, according to me it is possible to dispose of this application on another point, therefore, I am not doing so.
22. The application under 0. 9, R. 13, C.P.C. has been filed 37 days after 27-7-90 when the I.A. 2278/89, being objections to the
23. In view of the fact that I have held that the application is barred by time, there is no need to consider the arguments of Mr. Kanwal Narain that the application does not show any sufficient cause and, therefore, deserves to be dismissed on merits. It is also hot necessary to go into the question that the decree is an appealable decree in view of S. 39(l)(vi) as contended by Mr. Kanwal Narain. Even if the decree was appealable the application tinder 0. 9, R. 13; if otherwise maintainable or within time; would not have been rejected merely because the decree was appealable.
24. I.A. 7250/90 is dismissed as being barred by time. I.A. 7251/90 has consequently become infructuous and is accordingly dismissed. In view of the facts and circum award were dismissed. As noticed above, no stances of the case, there will be no order Asio application for condensation of delay has been costs.
25. Application dismisied.