Madhya Pradesh High Court
Ashoka Infraways Limited Through Its ... vs Public Works Department on 6 February, 2023
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 6 th OF FEBRUARY, 2023
MISC. PETITION No. 3396 of 2020
BETWEEN:-
1. ASHOKA INFRAWAYS LIMITED A COMPANY
INCORPORATED UNDER THE COMPANIES ACT ,
1956 HAVING ITS REGISTERED O/O : AT ASHOKA
HOUSE, ASHOKA MARG, WADALA, NASIK
(MH)422006 THROUGH ITS AUTHORIZED
REPRESENTATIVE PRADEEP SHINDE, AGED
ABOUT 40 YEARS, ASHOKA HOUSE, ASHOKA
MARG, WADALA, NASIK (MAHARASHTRA)
2. ASHOKA BUILDCON LIMITED A COMPANY
INCORPORATED UNDER THE COMPANIES ACT ,
1956 HAVING ITS REGISTERED O/O : AT ASHOKA
HOUSE, ASHOKA MARG, WADALA, NASIK
(MH)422006 THROUGH ITS AUTHORIZED
REPRESENTATIVE PRADEEP SHINDE
(MAHARASHTRA)
.....PETITIONER
(SHRI JAY SAVLA, SENIOR ADVOCATE WITH SHRI PARESH JOSHI-
ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, PUBLIC WORKS
DEPARTMENT, BHOPAL (MADHYA PRADESH)
2. PUBLIC WORKS DEPARTMENT THROUGH
EXECUTIVE ENGINEER, DEWAS DIVISION, DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
( SHRI BHASKAR AGRAWAL- GOVERNMENT ADVOCATE)
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 2/6/2023
6:38:57 PM
2
This petition coming on for admission this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
Heard finally with the consent of both the parties.
The present petition under Section 227 of the Constitution of India has been filed against the order dated 13.03.2020 (Annexure P-1) passed in MJCAV (Arbitration) No.22/2020 by the learned Commercial Court, Indore, whereby the application filed by the respondent herein under Order 14 Rule 5 r/w Section 151 CPC has been allowed holding that there is no bar in hearing the point of jurisdiction as preliminary objection, if not an issue.
Learned Senior Counsel appearing for the petitioner contended that the learned Commercial Court has entirely ignored the settled principles of law laid down by the Apex Court and has relied on the judgment of the Apex Court in the case of Fiza Developers and Inter-Trade Private Limited Vs. AMCI(India) Private Limited and Another 2009 17 SCC 796. In para Nos.22 to 24 of the judgment, the Apex Court has held as under:-
" 22. The scope of enquiry in a proceeding under section 34 is restricted to consideration whether any one of the grounds mentioned in sub-section (2) of Section 34 exists for setting aside the award. We may approvingly extract the analysis relating to `Grounds of Challenge' from the Law & Practice of Arbitration and Conciliation by Shri O. P. Malhotra.
" Section 5 regulates court intervention in arbitral process. It provides that notwithstanding anything contained in any other law for the time being in force in India, in matters governed by Part I of this Act, the court will not intervene except where so provided in this Part. Pursuant to this policy, section 34 imposes certain restrictions on the right of the court to set aside an arbitral award. It provides, in all, seven grounds for setting aside an award. In other words, an arbitral award can be set aside only if one or more of these seven grounds exists.Signature Not Verified Signed by: VARSHA DUBEY Signing time: 2/6/2023 6:38:57 PM 3
The first five grounds have been set forth in section 34(2)(a). In order to successfully invoke any of these grounds, a party has to plead and prove the existence of one or more of such grounds. That is to say, the party challenging the award has to discharge the burden of poof by adducing sufficient credible evidence to show the existence of any one of such grounds. The rest two grounds are contained in section 34(2)(b) which provides that an award may be set aside by the court on its own initiative if the subject matter of the dispute is not arbitrable or the impugned award is in conflict with the public policy of India."
The grounds for setting aside the award are specific. Therefore necessarily a petitioner who files an application will have to plead the facts necessary to make out the ingredients of any of the grounds mentioned in sub-section (2) and prove the same. Therefore, the only question that arises in an application under section 34 of the Act is whether the award requires to be set aside on any of the specified grounds in sub- section (2) thereof. Sub-section (2) also clearly places the burden of proof on the person who makes the application. Therefore, the question arising for adjudication as also the person on whom the burden of proof is placed is statutorily specified. Therefore, the need for issues is obviated.
23. Framing of issues is necessary only where different types of material propositions of fact or law are affirmed by one party and are denied by the other and it is therefore necessary for the court to identify the issues and specify the party on whom the burden to prove the same lies. When this exercise has already been done by the statute, there is no need for framing the issues.
24. In other words, 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. It is thus clear that issues need not be framed in applications under section 34 of the Act."
In view of aforesaid, the learned Commercial Court was obliged to hear the application under Section 34 of the Arbitration and Conciliation Act, 1996 instead of deciding the preliminary issue in respect of jurisdiction. The Court is required to consider all the objections under Section 34 of the Act, 1996 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 2/6/2023 6:38:57 PM 4 simultaneously and pass a final order. He further submitted that no effective orders have been passed after 16.04.2020 and the case was being adjourned. Now the case is fixed for 22.02.2023.
On the other hand, counsel for the State objected to the prayer and submitted that there is no bar under the Act, 1996 to simultaneously deciding all the issues or make a preliminary issue with respect to the jurisdiction, therefore, no interference is called for. Hence, petition deserves to be dismissed.
Heard the learned counsel for both the parties.
Taking into consideration the findings of the Apex Court in the case of Fiza(supra), the impugned order cannot be allowed to stand, accordingly, the same is hereby set aside. The Learned Commercial Court is directed to decide the application under Section 34 of the Act, 1996, in accordance with law after considering all the objections raised by the respondents herein, as expeditiously as possible.
Accordingly, this petition stands disposed of.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
VD
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 2/6/2023
6:38:57 PM