Karnataka High Court
M/S Trishul Developers vs M/S Mac Charles (India) Limited on 18 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 1220
Author: R Devdas
Bench: R Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2020
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.86 OF 2020(GM-RES)
BETWEEN
1. M/S TRISHUL DEVELOPERS
A PARTNERSHIP FIRM
HAVING ITS OFFICE
AT NO. 109-B
MITTAL TOWERS,
NO.6, M.G. ROAD,
BANGALORE-560001
REPRESENTED BY
ITS PARTNER-NIRAJ MITTAL
2. MR NIRAJ MITTAL
S/O MR O.P. MITTAL,
AGED ABOUT 45 YEARS,
SPA HOLDER OF P3-5
3. MR O.P. MITTAL
S/O LATE MAILRAM MITTAL,
AGED ABOUT 69 YEARS,
RESIDING AT NO. 94D,
MITTAL NIWAS,
9TH CROSS ROAD,
RMV EXTENSION,
BANGALORE-560080
4. MRS UMA MITTAL
W/O MR. O.P. MITTAL,
AGED ABOUT 62 YEARS,
5. MRS JYOTHI MITTAL
W/O MR NIRJA MITTAL
AGED ABOUT 45 YEARS,
-2-
ALL RESIDING AT
NO. 94D, MITTAL NIWAS,
9TH CROSS ROAD,
RMV EXTENSION,
BANGALORE-560080
...PETITIONERS
(BY SRI DHANANJAY VIDYAPATI JOSHI, ADVOCATE)
AND
M/S MAC CHARLES (INDIA) LIMITED
A COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
P.B. NO. 174, NO. 28, SANKEY ROAD,
BANGALORE-560052
REPRESENTED BY MANAGER.
...RESPONDENT
(BY SRI B S SATHYANAND, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 17.12.2019 PASSED BY
THE HON'BLE ARBITRATOR IN AC NO.99 OF 2019 VIDE
ANNEXURE-A AND ETC.
THIS WRIT PETITION IS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
Though the matter is listed for "Hearing on Interlocutory Application" filed by the respondent, the matter is taken up for final disposal with the consent of the learned counsels on either side.-3-
2. The petitioners are aggrieved by the interim order dated 17.12.2019 passed by the Arbitral Tribunal in A.C.No.99/2019. The gist of the background is that during the course of recording of evidence, marking of certain documents have been objected to, on the ground that the documents are insufficiently stamped. Therefore, on the objections raised by the petitioners, the Arbitrator held that the factual matters require evidence and therefore, at present they will not be examined and however, they shall be examined after the conclusion of the evidence, either independently, or in the case they have a bearing on the main matter, along with the main matter.
3. An objections is raised by the learned counsel for the respondent regarding the maintainability of this writ petition. Reliance was placed on the decision of the Hon'ble Apex Court in the case of M/s. S.B.P. and Co. Vs. M/s. Patel Engineering Ltd. and Anr., reported in AIR 2006 SC -4- 450, two decisions of Division Benches of this Court in the case of Associated Constructions, Andhra Pradesh Vs. Dolomite Berhad A.L.S. Ltd. (JV), Hyderabad, reported in 2015 (4) AKR 663 and Radiant Infosystems Limited, Bangalore Vs. State of Karnataka, reported in AIR 2019 KAR 6.
4. It was pointed out from the decision in the case of Associated Constructions (supra) that on consideration of the decision of the Apex in the case of M/s. Patel Engineering Ltd. (supra) it has been held that if in a case of interim award or a final award passed by an Arbitrator, then the aggrieved party has an alternative remedy of approaching the appropriate civil Court under Section 34 or the High Court under Section 37 of the Act, as the case may be, but when an order passed by learned Arbitrator is not in the nature of interim award, although no remedy is prescribed under the Act, that would not imply that the extraordinary original jurisdiction of the High Court under Articles 226 and 227 of the Constitution -5- could be invoked. In this regard, the relevant paragraph No.45 and 47 of the Hon'ble Apex Court was extracted as herein below:
"45. It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the Arbitral Tribunal appealable. Under Section 4, the aggrieved party has an avenue for ventilating his grievances against the award including any in between orders that might have been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the Arbitral Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible."
xxx xxx xxx -6- "47. We, therefore, sum up our conclusions as follows:
(i) to (v).......
(vi) Once the matter reaches the Arbitral Tribunal or the sole arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the Arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act."
5. The learned counsel for the respondent further submits that even on merits, it is clear from the impugned order that the Arbitrator has kept the question open and has specifically held that the question of deficiency of stamp duty shall be examined after conclusion of the evidence either independently, or in case they have a bearing on the main matter, along with the main matter. Therefore, it is submitted that the writ petition requires to be rejected.
6. The learned counsel for the petitioners would place reliance on a decision of the Hon'bel Apex Court in the case of Bipin Santhilal Panchal -7- Vs. State of Gujrat and Another, reported in (2001) 3 SCC 1 to submit that the law is well settled that whenever an objection relating to deficiency of stamp duty of a document is raised, the Court has to decide the objections before proceeding any further.
7. Having heard the learned counsels, this Court is of the opinion that without going into the question of maintainablity of this writ petition, since the Arbitrator has specifically held that the question has been kept open and shall be considered after the completion of the evidence and in view of the fact that sub-clauses (3) and (4) of Section 19 enable the Arbitral Tribunal to conduct the proceedings in the manner it considers appropriate and the power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence, the right of the petitioners having not been concluded, it would be appropriate to relegate the parties back to the Arbitral Tribunal with a specific observation that the -8- question of deficiency of stamp duty shall be considered at the right time, before hearing the parties on the main issue.
With these observations, the writ petition is disposed of.
Sd/-
JUDGE DL