Karnataka High Court
M/S. Consolidated Engineering ... vs The Principal Secretary on 29 July, 2011
Author: A.S.Bopanna
Bench: A.S.Bopanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 297 DAY OF JULY 2011 . BEFORE THE HON'BLE MR.JUSTICE A.S. BOPANN. A. W.P.NO.28346 OF 201. | 1G M- RE 2S] - oe DETWEEN M/S.CONSOLIDATED ENGINEER RING ENTERPRISES : NALPAD CHAMBERS, 19 - KEMPEGOWDA ROAD _ BANGALORE -- 560 009. REPD. BY ITS PARTNER SRI N.A.MOHAMMED: SN" PETYTIONER BY SRES OK Vv C: IALAPATHY, SRIADV., FOR M. /S. HE EGDE ASSOCIAT (ES) AND: 1. THE PRINCIPAL SECRETARY TO GOVERNMENT . 0 ERREG ATION DEPARTMENT _ > (MINOR TRPIGATION) COHOVE RN MENT OF KARNATAKA ~NOLS54, 3 POY FLOOR, MULTISTORIED _ BUIL DINGS, DR.B.R.AMBEDKAR VEEDHI BANGALORE -560 O11. "9. THE EXECUTIVE ENGINEER MINOR TRRIGATION DIVISION . 51 FLOOR, SHOPPING COMPLEX "4™ BLOCK JAYANAGAR BANGALORE ~ 560 01], Rafe! ORE BLM.RAMA PRASDAD CHIEF ENGINEER (RETIRED) 640, 474 CROSS gf . rae a. 3 MARUTHE TEMPLE STREET KUVEMPU NAGAR (BEHIND KAMAKSHI HOSPITAL) m MYSORE-23. .. RESPONDENTS
(BY SREM.S.BHAGAWAT, ADV., FOR C/R 12) -- a SESSIONS JUDGE, RAMANAGARA, VIDE ANNEXURE-F AND ETC. _ Be THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE-THE FOLLOWING:
The petitioner is before this Court assailing the order dated 2.6.20 1] insolar as i relates to 1.A.No.6 in Arbitration Suit Noel /2007. The said order is impugned al Annexure-F to the petition.
- 2. se Heard Sti S.K.V.Chalapathy, learned Senior Counsel appearing for M/s.Hegde Associates for the petitioner and Sri M.S.Bhagwat, learned counsel, who os "hae entered caveat on behalf of the respondents No.1 and 2 and perused the petition papers.
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3. Phe petitioner herein is the first respondent in Arbitration Suit No.1/2007. The said sui has oeen instituted by the respondents No.1 and 2 herein und er Section 34 of the Arbitration and Conciliation Act, 1996 assailing the award passed by the arbitrator. tn the .
pending suit, the respondents No. t, and 2 herein fited two applications -- one under Order 14 Ruile 5 of CPC, which was numbered "as 1 ANOS "and ihe : instant. application, which is the. subject maiter of the petition is under Order 18 Rule 17 of CPC, which was numbered as LA.No.6. The Court below. in any event, has rejected the LA.No.5. and therefore. tbe grievance in the instant petition refers only to.LA.No.6.
4. ~ The learned Senior Counsel while assailing the order passed by the Court below would contend that ihe Court. below was not justified in allowing the : ~ application at a belated stage. It is contended that the ° proceedings have been pending from the year 1999, though the instant petition is renumbered as "AS.No.1/2007. It is his further contention that. in a a proceeding under Section 34 of the Act, there was no need for tendering evidence and in any event," the respondents have not putforth the reason why. the "eas se :
has to be reopened and therefore the said 'pplication ought not to have been allowed.
3. Learned Senior -- Counsel" has "also, . placed reliance on the judgment of Ine Hon' Supreme Court in the case of FIZA DEV LOPE RS AND INTER-TRADE P. LTD. v. AMCi, 0 PVT. 3 LTD. AS uD AN IR, reported in 2009(6}) Kar. ot 576. to contend: that the proceedings under r Section 34 of the Act s should be disposed of in a time frame. -
% . Learned counsel for the caveator would ws however . seck to justify the order passed by the Court bel ow by pointing out that when the Rules have been framed relating to the arbitration suit and issues have 'been framed, the Court below was justified in allowing the respondents to tender their evidence in the matter, eo--
7. In the light of the rival contentions putforth, | have perused the order passed by the Court below. ~In this regard. while considering and disposing 1.A.No.6, the Court below has adverted to its reasons. in point ; long pendency of the proceedings. . However. | the distinguishing nature adverted io by the Court below for arriving at the conclusion that the said application should be allowed is with 'referehce™ to the earlier proceedings, wheteunder the matter tad gone up to the decision before the Hon'ble Supreme court. Thereafter, in any event the suit had been registered, since it was held that. the - appeal was not the appropriate ; procecdirig. In' his regard, the issues had been framed. ws Therefore, the Court was of the opinion that when the issues have been framed and the respondents herein, had 'hot' tendered eviderice except on the issue of J imitation and had sought for an opportunity to lead evidence, the same should be permitted.
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8. Though there is a long pendency of the proceedings, considering the fact that the respondents have sought for tendering the evidence before the. closure of proceedings and in any "event, "such . of the opinion that the Court below has. rightly exercised its discretion and such discretion exercised by the Court below does not call for iiiterference while examining the same in a petition under Article 227 of the Constitution of India where the scope of examination by this Court is limited. Hence tothe said extent, | see no error.
9. a However having taken note of the fact that the proceedings has been' pending for quite some time "and "piso. having taken note of the decision of the Hoi bie Su preme Court cited by the learned Senior Counsel for ite petitioner, as also as the submissions : "trade by fhe learned counsel for the parties that both ° the parties would co-operate with the Court below for early disposal of the main matter itself, ] am of the "opinion thal an opportunity of tendering evidence si Shem m, & # "} i permitted by the Court below would have to he qualified by fixing a time limit. Hence, both the petitioner as well as the respondents herein, who are the parties ; befare . the Court below shall complete their evidence within a period of two months from 30.7.201 I, since the matter ; is listed before the Court bel low tomorrow (59, 7. 20) Pi). The Court below shall thereafter. Jook into the records as well as the evidence tendered and a a ispose of the main matter itself as expeditionsly as. "possible, but not later than four months | fro rial 30, 7. 2011 IQ. in ferme oof fhe above, the petition stands disposed of... No or rd or as to. costs.
Bae aah i Tudge OVGR F