Delhi High Court
B.P. Sharma vs Union Of India And Anr. on 3 January, 1995
Equivalent citations: 57(1995)DLT225, 1995(32)DRJ361, (1995)110PLR13
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
(1) By order dated 27.7.1994 an award made by an arbitrator has been directed to be made a rule of the court as none of the parties had preferred any objection to the award though the period of limitation prescribed therefore, from the date of the service of the notice of filing of the award, had expired.
(2) These applications have been filed on behalf of the respondent Union of India on 14.12.1994 whereby they have now (i) filed objections under Section 30 and 33 of the Arbitration Act, (ii) sought for condensation of delay under Section 5 of the Limitation Act in filing the objections, (iii) sought for setting aside the ex parte decree dated 27.7.94 under Order 9 Rule 13 Cpc, and (iv) also sought for stay of the execution.
(3) According to the respondent, the notice of filing of the award addressed to the Secretary, Ministry of Communication, Sanchar Bhavan, 20- Ashoka Road, was not a proper notice in as much as it was neither correctly addressed nor accompanied by any copy of pleadings. The notice should have been addressed to the Executive Engineer (Civil) of Telecom Civil Division-I or Ii who were the officers competent to accept the notice as they had dealt with the arbitration proceedings on behalf of Union of India. The receiving clerk in the office of the Secretary did not accept the notice for want of particulars as he could not have understood from the notice merely as to which was the section or the officer concerned in the large establishment of the Secretary to whom the notice related and. would be competent to deal therewith. In the submission of the respondents, they were justified in preferring the objections within 30 days from the date of their having gathered knowledge of these proceedings through communication made on behalf of the petitioner of the factum of the decree having been passed.
(4) Vide order dated 27.7.1994, this court has recorded that the notice of filing of the award was offered to the representative of the Union of India but the same was not accepted mentioning that the copy of the application was not sent. This 'court has also formed and expressed an opinion that there was no law which required copy of the award or of any application being sent along with notice of filing of the award and so the notice would be deemed to have been served on the Union of India on April 7, 1994, the date on which the notice was refused by the concerning clerk as representative of Union of India. As there were' no objections filed the Court has proceeded to make the award a rule of the Court.
(5) The maintainability of all these applications has been objected to by the learned counsel for the petitioner submitting that once a decree is passed making an award a rule of the court because no objection was filed within the period limited therefore then the decree is not, and cannot be called, an ex parte decree and no application under Order 9 rule 13 of the Cpc would lie. Reliance has been placed on the decision of this court in the case of Shri Inder Khanna & Sons Vs: Union of India 1991, ARB.L.R.411. Therein the view taken by a learned single Judge of this court is, that a decree in terms of the award passed after due service of notice of filing of award in the court is not, an exparte decree/order and the provisions of order 9 Rule 13 Civil Procedure Code would not apply to have it set aside.
(6) I have myself followed this decision as also a decision of Andhra Pradesh High Court in Government of Andhra Pradesh Vs. Baltchala Balaiah to the same effect and held in the case of R.H. Sharma Vs. Union of India (Ex.No. 101/1994, order dated 8.7.1994} that an application under Order 9 Rule 13 Civil Procedure Code would not in such circumstances lie.
(7) However, my attention was not then invited to yet another decision of this court in M/s. Bhagwan Dass Brothers Vs. Gulam Ahmed Dar & others which is a more illuminating and exhaustive judgment laying down correct law and which I am not only bound to follow but with which I also respectfully agree. Therein M.L. Varma, J. has catalogued five situations which may arise after an award is filed in the court. They are :-
"I)An order under Section 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 Article 119(b) of the Limitation Act, 1963 may not have elapsed and an order under Section 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 Section 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 Section 17 of the Act, making the award a rule of the Court."
(8) The learned Judge has then held that in the situation contemplated by (v) -above, as was the case in M/s. Bhagwan Dass Brothers (supra) an application under Order 9 Rule 13 would lie.
(9) In my opinion an application under Order 9 Rule 13 of the Civil Procedure Code can lie only in the situation contemplated by V, above. When a party has made appearance in response to a notice of the filing of the award and filed objections and the objections have been set down for hearing, an occasion for default in appearance may arise leading the Court to proceed ex-parte. An order rejecting the objection in default of appearance followed by a decree in terms of award may amount to an ex-parte decree leaving open the remedy of Order 9 Rule 13 Civil Procedure Code available to a party.
(10) The same cannot be said of the situations contemplated by (i), (ii), (iii) and (iv) above for the obvious reasons. The scheme of the Arbitration Act shows that the Court is obliged to give notice to the parties of the filing of the award under Section 14(2) of the Act. Under Section 17 the Court may proceed to pronounce judgment according to the award, followed by a decree, only in two contingencies : (i) when the time for making an application to set aside the award has expired and no such application has been filed, and (ii) such application having been made, has been refused. Article 119 (b) of the Limitation Act, 1963 prescribes for 30 days limitation for. making an application for setting aside an award or getting it remitted commencing the date of service of the notice of the filing of the award.
(11) Where no application for" setting aside and or remitting the award is made and the 30 days period of limitation has expired, then there is nothing like a party preferring an objection required to appear before the Court for being heard and hence the Judgment pronounced even if in the absence of a party would not be an ex-parte Judgment or decree. The question of entertaining or making an application for setting aside an exparte decree under Order 9 Rule 13 Civil Procedure Code would not, therefore, arise.
(12) The Court acquires jurisdiction to pronounce Judgment in terms of award followed by decree only on satisfaction of dual conditions :'(i) parties to the award having been served with a notice of filing of the same, and (ii) a period of 30 days having elapsed from the date of service of such notice. If either of the two conditions is missing, the decree would not be legal and shall be liable to be set-aside in revision (see Sheikh Esuf Rowther @ A.S.Mohammed Yusuf & Ors. VS. Sheikh Davad Rowther & Anr, , Koduri Krishnmma VS. Koduri Chennayya & Anr. Air 1949 Madras 276, Palaparthi Venkataramayya & Ors. VS. Duggina Papayya & Ors. Air 1943 Madras 718 Achaber Pande VS. Kuldip Singh.AIR 1925 Rangoon 103, Ravibhai Kashibhai VS. Dahyabhai Zaberbhai Patel, Air 1921 Bombay 32, Mani Ram VS. Ram Asray, Air 1921 Oudh 148 (1). Before pronouncing judgment followed by decree it is obligatory upon the Court to satisfy itself of the availability of the dual conditions referred to hereinabove. No man shall suffer for the fault of the Court. If one of the two conditions is missing, the Court may set-aside the decree by exercising its inherent power and thereby cure illegality in its proceedings on its attention being invited thereto (see Soorajmull Nagarmal VS. Golden Fibre and Products, and Shrichand Prasad VS. Mohan Singh, .
(13) The party aggrieved may also appropriately move for review of Judgment under Order 47 Rule I CPC.. However, no appeal would lie in view of the prohibition contained in Section 17 of the Arbitration Act. No appeal shall lie against an award except on the ground that it was in excess of or not otherwise in accordance with the award. Such a judgment and decree would not also fall within the list of appealable orders under Section 39 of the Act.
(14) Notice of 'filing of objections having been sent and served and time limit for filing objections having also expired without any objection against the award having been filed, the question of making an application under Order 9 Rule 13 Civil Procedure Code against a decree based on award, a situation like (iv) above does not arise. The question may arise what is the remedy of a party who was prevented by sufficient cause from making an application under Sections 16 or 30 read with Section 17 of The Act and the Court has proceeded to pass a decree in between. The Court having become functuous-officio may not be competent to entertain the objection petition even if accompanied by an application under Section 5 of the Limitation Act. Present one is not a case where such a situation has arisen. Would a party be rendered without a remedy? Possibly the only provision to which resort may be had is of a review under Order 47 Rule I of the Cpc if the party can bring its case within the permissible grounds of review.
(15) The present case is one where the respondents dispute having been properly served with anotice. It is a case like (ii) in para 7 above. An application under Order 9 Rule 13 Civil Procedure Code would not be maintainable. Still the Court if satisfied of the truthfulness of the ever merits made in the application, might be inclined to exercise its inherent jurisdiction. The application cannot, therefore, be thrown out at the threshold.
(16) Though the learned counsel for the petitioner has relied on Narula & Company VS. Union of India, Air 1976 Rlr 94 M/s. Lyall & Company VS. Union of India, Ilr 1973 (l)Delhr905 to contend that notice addressed to the Secretary was enough; learned, counsel for the respondent has cited Naresh Kumar Gupta VS. Nabbharat Co-operative Group Housing Society Ltd., Air 1994 (1) Arb.L.R. 1 (Delhi), in support of the submission that the notice should have been served on the Secretary and not on a clerk merely. The title to go into merits of these rival contentions is yet to arrive. The matter was heard only on the question of maintainability of the applications. Whether or not there was a service or proper service of notice on the respondent.would be required to be determined by reference to Section 14 of the Arbitration Act, Sections 79, 80 and Order 27 of the Civil Procedure Code at the time of hearing on merits of the application.
(17) Objection to the maintainability of the applications is over-ruled.
(18) Ia 11816/94, though styled as one under Order 9 Rule 13 Cpc, is set down for hearing on merits consistently with the observations made hereinabove.