Delhi High Court
R.K. Goel Abhey Kumar Jain vs Union Of India on 18 November, 1996
Equivalent citations: 1997IAD(DELHI)120, 1996(39)DRJ641
JUDGMENT M.K. Sharma, J.
(1) This order shall dispose of I.A.No.' 2120/1994 filed on behalf of respondent under Order 9 Rule 9 of the Code of Civil Procedure for setting aside the judgment and decree dated 17.1.1994 passed by this court and also the applications filed by the respondent under Section 5 of the Limitation Act (being 1.A.2121/1994 & 885/1995) seeking for condensation of delay in filing the application under Order 9 Rule 9 Civil Procedure Code as also I.A.No. 2122/1994 filed on behalf of the respondent seeking for stay of the aforesaid ex parte judgment and decree dated 17.1.1994.
(2) Disputes and differences having arisen between the parties regarding construction of Central School building at Janakpuri (SH) including water supply and sanitary installations the same were referred to the sole arbitration of Shri J.P.Singhal, Ministry of Urban Development, New Delhi, who was appointed as the Sole Arbitrator by the Chief Engineer (NZ), Cpwd, New Delhi. The arbitrator published his award on 30.4.1986.
(3) The petitioner filed a petition under Sections 14 & 17 of the Arbitration Act seeking for filing of the original award in this court and praying for making the said award a Rule of the Court. Notices of filing of the award were issued to the parties. The petitioner did not file any objection to the award whereas the respondent. Union of India filed objections as against the aforesaid award which were registered as I.A.5058/1986.
(4) The records of the present case shows that the respondent was represented by a counsel. However, on 17.11.1994 when the aforesaid matter was put up for arguments the counsel for the respondent was absent kand accordingly the arguments were heard ex parte and by judgment and decree date 17.1.1994 this court rejected the objections and made the award a Rule of the Court. Being aggrieved by the aforesaid ex parte judgment and decree passed by this court the respondent has filed the aforesaid applications.
(5) In I.A. 2120/1994 the respondent has stated that the Union of India filed objections under Sections 16, 30 and 33 of the Arbitration Act on 8.9.1986 for setting aside the award dated 30.4.1986, as against which a reply was also filed by the petitioner. It further appears from the records that the respondent also filed an affidavit by way of evidence on 17.9.1987 and then a rejoinder affidavit was also filed by the respondent on 17.8.1988. It appears from the objections filed by the Union of India against the award that the respondent has challenged the jurisdiction of the arbitrator in passing an award by giving decision on an 'excepted matter' although it has been held by the Supreme Court and this court that the order of the Superintending Engineer levying such compensation is final and beyond the jurisdiction of the Arbitrator. In this connection reference may be made to the decision of the Supreme Court in the case of Vishwanath Sood Vs. Union of India: and to the decision of this court in the case of Uttam Singh Pliggal Vs. Union of India; 1988(2) Arbitration Law Reporter page 340. In the said application filed by the respondent under Order 9 Rule 9 Civil Procedure Code it has been further stated that this court while passing the ex parte judgment and decree in the present case did not decide the aforesaid issues raised in the objections filed by the respondent. It is further stated that the Executive Engineer who was conducting this case in the High Court was transferred and the present incumbent by whom the present applications have been filed came to know about the passing of the aforesaid ex parte judgment and decree on 18.2.1994 when the representative of the petitioner visited his office and informed him about the judgment and decree. It is submitted on behalf of the respondent that the party namely - the respondent should not be allowed to suffer on account of negligence on the part of their counsel in appearing in the case. It is stated that the absence of the counsel on the date of arguments was bonafide and that there was no negligence on the part of the Objector.
(6) It may however, be stated that the aforesaid application although stated to have' been filed under Order 9 Rule 9 Cpc, the same however, in fact is an application under Order 9 Rules 13 Civil Procedure Code and is treated as such. Alongwith the aforesaid application '.'IL' respondent has filed an application under Section 5 of the Limitation Act seeking for condensation of delay in filing the application under. Order 9 Rule 13 Civil Procedure Code on the ground that the limitation of filing the application should be construed to have started from the date of knowledge of passing of the decree which was 18.2.1994. Subsequently, however, another application was filed by the respondent wherein it was stated that towards the end of December, 1994 the respondent'd counsel's daughter's son was involved in an accident in U.S.A. and that on 25.12.1994 he passed away and in view of the aforesaid circumstances the counsel for the respondent was in a state of mourning and could not, therefore, appear on 17.1.1994.
(7) The counsel for the petitioner although submitted before me that no reason has been assigned by the respondent for the non-appearance on 17.1.1994, however, on record and on going through the submissions made in the aforesaid applications I find that reason for the non-appearance of the counsel for the respondent on 17.1.1994 have been given. In my opinion, reasons given are sufficient. I am also of the considered opinion that there is no negligence on the part of the counsel to appear on the said date and his absence appears to be bonafide. In that view of the matter the delay in filing the application under Order 9 Rule 13 Civil Procedure Code by the respondent stands condoned.
(8) The counsel for the petitioner submitted that the application filed by the respondent under Order 9 Rule 9 and/or under Order 9 Rule 13 Civil Procedure Code is not maintainable and in support of his aforesaid submission he relied upon a decision of this court in Sanyukt Nirmata Vs. Dda & Another; . The counsel appearing for the respondent however, refuted the aforesaid allegations and submitted that such an application is maintainable and in support of his submission he relied upon the decision of this court in M/s. Bhagwan Dass Bros. Vs. Ghulam Ahmed Dar: and also the decision of this court in D.KhosIa & Co. Vs. Y.N.Rao and another; reported in 1994(2) Arbitration Law Reporter page 315.
(9) I have considered the submissions of the counsel appearing for the parties and have also carefully considered the ratio .of the aforesaid decisions of this court. In Sanyukt Nirmata case (supra) this court held that once the notice of filing of the award has been served on the parties and that party chooses not to file any objection then such a decree cannot be called an ex parte decree. In Bhagwan Dass Bros. case (supra) this court held that after the objections are filed the Objector is entitled to show that the conditions as mentioned in Sections 14 and/or 17 of the Arbitration Act have not been complied with and that good ground exists for either setting aside the award or remitting it, and therefore, if after having filed the objections to the award the Objector or his counsel is unable to appear when the objections arc 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 might be difficult to accept the proposition of law that the provisions of Order 9 Rule 13 Civil Procedure Code would not apply or for that matter such a decree would not be in the nature of an ex parte decree. In the case of D.KhosIa & Co. (supra) it has been held by this court that an ex parte award made due to negligence of the counsel despite due diligence of the defendants/respondents which is otherwise beyond time and does not give any findings, is liable to be set aside.
(10) In the light of the aforesaid decisions of this court it is crystal clear that if a party chooses not to file any objection after notice of filing of the award had been served on such a party, then under such circumstances a decree passed by a court cannot be called an ex parte decree but after the objection is filed to the award and thereafter the Objector or his counsel is unable to appear when the objections are taken up for hearing and after the aforesaid application containing the objection is dismissed resulting in the award being made a Rule of the Court and a decree is 'drawn up on the basis thereof then the provisions of Order 9 Rule 13 Civil Procedure Code would apply to the facts and circumstances of such a case. Applying the aforesaid principle of settled law to the facts of the present case, in my considered opinion, since objections were filed in the present case by the respondent against the award, an application under Order 9 Rule 13 Civil Procedure Code is maintainable and therefore, the present application filed by the respondent is held to be maintainable.
(11) On going through the averments made in the application which have been set out herein- above, I am of the considered opinion that the respondent has been able to make out a case of sufficient cause for setting aside the ex parte judgment and decree.
(12) In the result, I allow the applications filed on behalf of the respondent under Order 9 Rule 13 Civil Procedure Code and the other two applications filed by the respondent under Section 5 of the Limitation-Act. Accordingly, the judgment and decree dated 17.1.1994 are set aside. In view of setting aside of the judgment and decree dated 17.1,1994 the application filed by the respondent seeking stay of operation of the ex parte order dated 17.1.1994 and registered as I.A. No-2122/1994 has become infructuous. It is accordingly directed that the main petition alongwith the objections filed by the respondent shall now be listed for hearing on merits on 18.2.1997 in the category of 'Short Causes.'