Kerala High Court
State Of Kerala vs M/S.Somdatt Builders Limited on 1 March, 2012
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
THURSDAY, THE 1ST DAY OF MARCH 2012/11TH PHALGUNA 1933
Arb.A.No. 7 of 2012 ()
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I.A.4915/2011 IN OP(ARB) NO.71/2004 OF II ADDITIONAL DISTRICT COURT, ERNAKULAM
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APPELLANT/EMPLOYER:
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STATE OF KERALA,
REPRESENTED BY THE CHIEF ENGINEER,
NATIONAL HIGHWAY, PUBLIC WORKS DEPARTMENT,
PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM.
BY SR. GOVT. PLEADER MR.T.T. MOHAMMED.
RESPONDENT/CLAIMANT:
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M/S.SOMDATT BUILDERS LIMITED,
ENGINEERING CONTRACTORS, 56-5,
COMMUNITY CENTRE, E.KAILASH,
NEW DELHI-112 065.
BY SRI.ARAVIND MINOCHA, SENIOR ADVOCATE.
ADV. MR.MILLU DANDAPANI
THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD
ON 01-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
THOTTATHIL B.RADHAKRISHNAN
&
C.T.RAVIKUMAR, JJ.
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Arb.A.No.7 of 2012
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Dated this the 1st day of March, 2012
JUDGMENT
Thottathil B.Radhakrishnan,J.
C.R.
1.This appeal by the State of Kerala is filed invoking Section 37 of the Arbitration & Conciliation Act, 1996, hereinafter referred to as the `Act'.
2.The only provision in the Act for an appeal to this Court from the order of the court dealing with an application for setting aside an arbitral award under Section 34 is sub-section (1) of Section 37, which enumerates the orders which are appealable under that provision. The legislature, in its wisdom, has categorically expressed that an appeal shall lie from the orders enumerated in clauses (a) and (b) of sub-section (1) of Section 37 "and from no others". The use of the phrase "and from no others" within brackets in sub-section (1) of section 37 is a legislative device used to keep reminding that no appeal other Arb.A.7/12 2 than that which would fall in clauses (a) and (b) of Section 37 (1) would lie. Learned counsel for the respondent also refers to section 5 which restricts the extent of judicial intervention. This appeal is, admittedly, against an order by which the Court refused to grant leave to amend an application filed under section 34 of the Act.
3.The sequence of events would show that O.P(Arb).71/04 filed by the State before the court below seeking to set aside the award dated 20.12.2003 was dismissed on 23.3.2005. That led to MFA.16/05 to this Court. That appeal was allowed in part. The parties went to the Apex Court. Civil Appeals 3089/06 and 3090/06 were decided as per judgment dated 17.9.2009 ordering as follows:
i. "The judgment of the High Court dated June, 2005 and the judgment dated February 23, 2005 passed by the 2nd Additional District Judge, Ernakulam are set aside.
ii. The petition (O.P.Arb.71/2004) by the State of Kerala against the award dated December 20, 2003 is restored to the file of the Arb.A.7/12 3 2nd Additional District Judge, Ernakulam for fresh hearing and consideration of the objections in respect of claim Nos.1, 4B, 5 and 6.
iii. However, the 2nd Additional District Judge, Ernakulam shall fist emit the award to the Arbitral Tribunal for stating their reasons in support of claim Nos.1 and 4B and after receipt of the reasons from the arbitral tribunal proceed with the hearing and disposal of objections.
iv.Parties shall bear their own costs."
4.Following that, the court below remitted the award to the Arbitral Tribunal to state their reasons in support of claim No.1 and 4B in terms of directions (iii) in the judgment of the Apex Court. The Arbitral Tribunal has since stated reasons and forwarded it to the court below. State, being aggrieved by the reasons stated by the Arbitral Tribunal in support of claim Nos.1 and 4B, applied for leave to amend the application O.P (Arb).71/04. That interlocutory application stands dismissed. This order is the one that is now challenged before us. Arb.A.7/12 4
5.In terms of what is noted on the issue of jurisdiction referable to the provisions under sections 37 and also, 5 of the Act, no appeal lies against an order refusing leave to amend applications under Section 34 of the Act.
6.In the result, this appeal is dismissed without expressing anything on the merits of the impugned order and without prejudice to the right, if any, of the appellant to pursue other remedies against the impugned order, in accordance with law.
7.Having dismissed the appeal, any interlocutory order granted in this appeal, including in the nature of stay, will stand automatically vacated.
The Office will re-transmit LCR to the court below forthwith.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, Judge.
Sd/-
C.T.RAVIKUMAR, Judge.
kkb.6/3.