Chattisgarh High Court
Jhansi Orai Tollway Pvt.Ltd vs Bank Of India And Ors on 2 December, 2015
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CR No. 26 of 2014
Jhansi Orai Tollway Pvt. Ltd. Having Its Registered Office At G.E.Road,
Pulgaon, Durg, Distt Durg, CG Through Its Duly Authorized Representative
And Director Surendra Rathi, S/o Shri Lalchandji Rathi, Age 42 Yrs, Occ.
Business, R/o A-16, Mahesh Nagar, Durg, Distt Durg, Cg
---- Applicant
Versus
1. Bank Of India And Ors. S/o Bhilai Mid Corporate Branch, Shop No. 111,
First Floor, Grace Plaza, Nehru Nagar Square, Bhilai, Distt Durg, CG,
Through Its Branch Manager
2. Bank Of Baroda Padmanabhpur Branch, Patel Complex, Padmanabhpur,
Distt Durg, Through Its Branch Manager, Cg
3. National Authority Of India Having Its Principal Office At G-5 & 6, Sector-10,
Dwarka, New Delhi- 110075, Through Its Chairman And Having Unit Office
At Project Director, National Highways Authority Of India,house No. A-7, Vip
Estate, Shankar Nagar, Raipur, Distt Raipur, Cg
---- Respondent
For applicant : Mr. Prafull N. Bharat, Adv.
For Respondent No. 1 : Mr. Gautam Khetrapal, Adv.
For Respondent No. 3 : Ms. Fouzia Mirza, Adv..
Hon'ble Shri Justice Pritinker Diwaker
Hon'ble Shri Justice Chandra Bhushan Bajpai
C A V ORDER
Per Chandra Bhushan Bajpai, J
2/12/2015
1. Following question has been framed for reference by the Single Bench :-
"Whether in the facts of the case, the order making a reference to Arbitrator would be amenable to challenge under Section 115 of CPC or proviso to Section 115 will create a bar ?"
2. Facts of the case necessary to answer the question referred are that Civil Suit No. 207-A/2013 (Jhansi Orai Tollway Pvt. Ltd. -v- Bank of India and others) was filed before the 1st Civil Judge Class - I Durg to the court of 1st Additional Distt. Judge, Durg for declaration and injunction under Sections 27, 31 and 38 of the Specific Reliefs Act, 1963 read with Section 23 of the Indian Contract Act, 1872 by the plaintiff/applicant praying for following relief :
(i) A decree be passed with declaration in favour of the plaintiff that a 2 Concession Agreement between the plaintiff and the defendant No. 3 dated 5-2-2013 is against law, void-ab-initio, opposed to the public policy and immoral. Consequently quash, set aside, rescind, cancel the Concession Agreement dated 5-2-2013.
(ii) To declare that the defendant No. 3 has no right to encash the bid security, consequently release the plaintiff from obligation of bank guarantee having its validity till 30-10-2013.
(iii) to declare that the defendant No. 3 has played fraud on the plaintiff to grab bid security in the form of bank guarantee;
(iv) as the agreement is against law and void-ab-initio, to pass a decree of perpetual injunction in favour of the plaintiff not to take any coercive step against the plaintiff under the said agreement and to restrain the defendant No. 3 to encash bank guarantee dated 1-9-2012.
3. The defendant No. 3 had filed an application under sub-section (1) of Section 8 of the Arbitration and Conciliation Act, 1996 ( in brevity 'Act of 1996') stating that as per Article 36.1 to 36.3 of the agreement, the matter be referred to Arbitrator for disposal. The suit is barred by Section 42 of the Act of 1996.
4. After hearing the parties on I.A. No. 3/13 under sub-section (1) of Section 8 of the Act of 1996, the court below vide its order dated 10-2-2014 allowed the I.A. No. 3/13, disposed of the suit and referred the parties to arbitration as provided under Section 8(1) of the Act of 1996 and returned the plaint to the plaintiff with an endorsement to the same effect.
5. The plaintiff/applicant has challenged the order dated 10-2-2014 by filing W.P.227 No. 122/2014. On 18-2-2014, the coordinate Bench while hearing the petition observed that the petitioner had remedy of revision and directed him to file application for conversion of the petition to civil revision. Relevant paragraph of the order reads thus :
"Strictly speaking, merely because there exists a remedy of revision, there is no bar as such to entertain the petition under Article 227 of the Constitution of India, nevertheless, there is no extraordinary reason also why this Court should entertain this petition as a petition under Article 227 of the Constitution of India when statutory remedy of revision under Section 115 of the CPC is available. Considering that the petitioner has remedy of revision, it would be appropriate that the petitioner should be allowed to convert this petition under a civil revision under Section 115 of CPC.3
Let an application for this purpose be filed by the petitioner today itself. The Registry may then list the matter under appropriate classification before the appropriate Bench."
6. On 13-3-2014 after the application was filed as directed, another coordinate Bench of this Court admitted the civil revision so converted for hearing and the matter was directed to be listed for final disposal at motion stage itself. Ultimately, the matter came to be heard on 30-4-2015 and the coordinate Bench while hearing the matter held that revision against the order impugned is not maintainable. Order dated 30-4-2015 reads thus:-
"30.04.2015 Mr. Praful Bharat, counsel for the applicant.
Mr. Avinash Chand Sahu, counsel for respondent No.1.
1. Against the order dated 10.02.2014 passed by the First Civil Judge, Class-I, Durg, in Civil Suit No.207-A/2014, a writ petition under Article 227 of Constitution of India was preferred before this Court bearing W.P.(227) No.122/ 2014 which was subsequently converted into this instant revision petition. This Court has raised the question of maintainability of this revision, therefore, the reference.
2. Brief facts of the case are that a civil suit was filed by the petitioner for declaration and injunction under Sections 27, 31 & 38 of the Specific Relief Act, 1963 read with Section 23 of the Indian Contract Act, 1982 before the Civil Judge, Class-I, Durg. In such suit, relief(s) was sought for that a decree with declaration be passed in favour of the plaintiff that the Concession Agreement dated 05.02.2013 executed between the applicant, plaintiff and defendant No.3, the National Highway Authority of India is against law, void ab-initio, opposed to public policy and immoral. Consequently, it was contended that the said agreement be quashed, set aside, rescinded, cancelled. Further relief was also prayed that a decree with declaration be passed to release the plaintiff from obligation of the bank guarantee dated 01.09.2012 having its validity till 30.10.2013 issued by Bank of India, Nehru Nagar, Bhilai. It was further pleaded that no right to encash bid security has accrued in favour of the respondent and as such a decree with declaration was further claimed that the encashment to bid security in the form of bank guarantee be passed on the premises that the agreement which was entered between the parties is an outcome of fraud, against the law and void ab-initio.4
3. The original defendant No.3 in the civil suit i.e., National Highway Authority of India after their appearance filed an application under Section 8(3) of the Arbitration and Conciliation Act, 1996. The said application was replied and eventually by an order dated 10.02.2014, learned First additional Judge to the Civil Judge, Class-I, Durg, referred the matter to the Arbitrator holding that the agreement contains an Arbitration Clause and therefore, such reference.
4. The said order was subject of challenge initially in a writ petition filed by the petitioner. The coordinate Bench of this Court by an order dated 18.02.2014 held that the petition under Article 227 of the Constitution of India is not maintainable when the statutory remedy of revision under Section 115 CPC is available. The matter came up before another co-ordinate Bench of this Court on 13.03.2014 wherein the Court has issued notice and admitted the petition for hearing. Thereafter, the petitioner travelled to different Benches and the orders were passed and on 26.11.2014, an interim order was passed in favour of the petitioner to maintain status quo in respect of encashment of the bank guarantee and the case was fixed for further hearing. On 13.02.2014 the original record of the civil suit bearing No.207-A/2013 was called for and the case was fixed for final hearing.
5. During the course of arguments on 22.4.2014 while the impugned order was tested, final hearing became a secondary debate and maintainability of revision has generated the averment of attention.
6. As would be evident from the record, initially a civil suit was filed by the petitioner seeking declaration to rescind the agreement entered into between Petitioner and Respondent No.3 which contains different obligation on the part of parties. The agreement also contained the Arbitration Clause. The challenge in the civil suit was made to the agreement itself that the agreement cannot be enforced and pleadings are made that the arbitration agreement has become redundant since the entire validity of the agreement is in question. However, the learned court below by its impugned order 10.02.2014 has referred the matter to the Arbitrator holding that the agreement contains Arbitration Clause which is subject of revision before this Court.
7. Close reading of the impugned order would go to show that the reference to Arbitrator was made on an application preferred by the Respondent N.H.A.I and not the applicant. Proviso appended to Section 115 of CPC reads that the High Court under the Section shall not vary 5 or reverse any order, except the order if had been made in favour of the party applying for revision would have finally disposed off the suit. Here, in the instant case the application of the respondent if had been rejected, would not have finally disposed off the suit. Consequently, in my opinion, the revision against the impugned order is not maintainable.
8. Since the co-ordinate Bench of this Court has taken a view that revision is maintainable and has admitted the case for hearing, therefore, following the law laid down in case of Official Liquidator Vs. Dayanand and others (2008) 10 SCC 1 wherein their Lordships have held that in case of difference of opinion between the coordinate Benches, instead of over-ruling decisions from one another, it would be appropriate to refer the matter to a larger Bench for just decision of the case. Consequently, the following question is framed for reference:
"Whether in the facts of the case, the order making a reference to Arbitrator would be amenable to challenge under Section 115 of CPC or proviso to Section 115 will create a bar ?"
In these circumstances, the coordinate Bench framed the question referred above for answer.
7. We have heard learned counsel for the parties and perused the record.
8. Learned counsel for the applicant argued that as there is no suit pending before the court below hence amended proviso to Section 115, CPC would not be applicable. Since the proviso itself is not attracted in the matter for the reason that no case is pending before the court below and the plaint has been returned to the plaintiff, proviso to Section 115, CPC will not operate as a bar. In support of his contention, he placed reliance on a decision of Hon'ble Supreme court in the matter of Shiv Shakti Coop. Housing Society, Nagpur -v- Swaraj Developers and others1 wherein while dealing with proviso to Section 115, CPC (after amendment by Act 46 of 1999 w.e.f. 1-7-2002) and maintainability of revision application after amendment, their Lordships held that the question to be asked whether the order in favour of the party applying for revision in the courts below would have given finality to the suit or other proceedings if answered in affirmative, then the application is maintainable, otherwise not. Hence if impugned order is interim in nature or does not finally decide the lis, the revision application will not be maintainable.
Learned counsel referred to para 12, 14, 18, 19, 20, 21, 22, 31 and 32, of above judgment which are quoted below:-
1 (2003) 6 SCC 659 6 "12. It is interesting to note that the Law Commission of India had recommended deletion of Section 115. In the Law Commission's opinion, provisions of Section 115 are analogous to provisions of Article 227 of the Constitution of India, 1950 (in short 'the Constitution') and the litigants would not be prejudiced in any way if the entire Section is deleted. The Joint Committee of the Parliament discussed these recommendations and only thought it proper to make certain modifications in the Section. That led to amendment of Section 115 by the Old Amendment Act. The deliberations of the Committee are reflected in the following words:
"The Committee, however, feel; that, in addition to the restrictions contained in Section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-Seventh Reports, the Committee recommended that Section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:-
i. that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or ii. that the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury."
14. Section 115 is essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under Section 115 is not linked with a substantive right.
18. As regards the field of operation of amended provision, it is to be noted that the language of amended provision is clear.
19. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The Language employed in a statute is the determinative factor of legislative intent.
Words and phrases are symbols that stipulate mental references to reference. The object of interpreting a statute is to ascertain the 7 intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse2 The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner3, Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel4 . It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. 5] . Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans 6, quoted in Jumma Masjid v. Kodimaniaudra Deviah7.
20. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them" (See Lenigh Valley Coal Co. v. Yensavage 8). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama9.
21. In Dr. R. Venkatchalam v. Dy. Transport Commissioner10, it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which 2 (1997) 6 SCC 312 3 (1846) 6 Moo PCC 1 4 [1998]3 SCC 234 5 (1978 )1 All ER 948 6 1910 AC 444 7 AIR 1962 SC 847 8 218 FR 547 9 (1990)1 SCC 277 10 [1977]2 SCC 273 8 the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
22. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See CST. v. Popular Trading Company11. The legislative casus omissus cannot be supplied by judicial interpretative process.
31. In Section 2, the expressions 'decree' and 'order' have been defined in Clauses (2) and (14) respectively. It is to be noted that it matters little that the judgment is styled as an "order". If, in fact, it fulfills the conditions of the definition under Section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are procussual i.e. interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the suit. Order 43 deals with "appeals from orders". These appeals lie under Section 104 of the Code. The said Section deals with appeals from orders and specifies the orders from which appeals can lie. Sub-section (2) of Section 104 says that no appeal shall lie form any order passed in appeal under the said Section. Section 104 and Order 43 Rule I contain a full list of appealable orders. An order which amounts to a decree within Section 2(2) does not fall within Section 104 and the only applicable section is Section 96. Clauses (a) to (f) of Section 104 were omitted by Arbitration Act 1940. Section 105 relates to other orders. It, inter alia, relates to any order i.e. to appealable as well as non-appealable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Sub-section (2) deals with case of remand. This section, in fact, contemplate two things i.e. (1) regular appeal from decree; and (2) the provision relating to grant of 11(2000)5 SCC 511 9 objection relating to interim order. Order 43 Rule 1 is an integral part of Section 104.
32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. Suit on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97 (3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered made, without exception, unless there is a different stipulation."
9. Learned counsel for the applicant submitted that as per appreciation by the Hon'ble Supreme Court in para 32, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. In the present case, the impugned order passed by the court below is not of interim nature and by the impugned order, lis has been finally decided hence as per Hon'ble Supreme Court, in the instant matter the revision is maintainable as the court below has finally disposed off the lis by allowing the I.A. no. 3/13 under Section 8(1) of the Act of 1996 and the parties are referred to arbitration as per said provision and the plaint is also returned. Nothing is pending before the court below.
10. Amended proviso to Section 151, CPC under test in the the instant matter read thus:-
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or order proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed 10 of the suit or other proceedings."
11. In para 32 of Shiv Shakti (supra) the Hon'ble Apex Court has held that the legislative intent is crystal clear. If the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. If we apply above principles in the present case, it would be clear that the impugned order passed by the court below was not interim in nature and by the impugned order, the matter has been finally disposed off and parties are referred to arbitration and plaint has been returned, meaning thereby, there is nothing pending before the court blow. The principle reiterated by Hon'ble Apex Court in para 32 of the above judgment is applicable in the matter to the extent that the revision is maintainable and proviso to Section 115, IPC will not create a bar.
12. Accordingly in the light of the principles laid down by Hon'ble Supreme Court in the matter of Shiv Shakti (supra), we hereby answer the question framed for reference as under :
"The order making a reference to arbitrator would be amenable to challenge under Section 115 of the CPC and proviso to Section 115, CPC will not create a bar."
13. Registry is directed to list the matter before appropriate bench for further proceedings.
Sd/- Sd/-
(Pritinker Diwaker) (Chandra Bhushan Bajpai)
Judge Judge
Pathak