Rajasthan High Court - Jodhpur
State vs M/S Om Metal @ Minerals Pvt Ltd on 17 January, 2020
Author: Abhay Chaturvedi
Bench: Abhay Chaturvedi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Civil Misc. Appeal No. 1644/2016.
The State of Rajasthan through Executive Engineer, Water Resources, Somkamla Project, Canal Division, Dungarpur.
----Appellant Versus M/s Om Metal @ Minerals Pvt Ltd., Industrial Estate, Kota (Rajasthan).
----Respondent For Appellant(s) : Ms. Rekha Borana, Addl. Advocate General with Mr. Saransh Vij.
For Respondent(s) : Mr. R.N. Bansal.
HON'BLE MR. JUSTICE ABHAY CHATURVEDI
Order
17/01/2020
The appellant-State has preferred this appeal under Section 39 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") against the order dated 01.04.2016 passed by the Additional District Judge, Dungarpur in Civil Case No. 29/2004, whereby the Court below dismissed the application under Section 34 of the Act filed by the appellant-State.
While praying for interim relief, learned counsel for the appellant-State submitted that the Court below erred in dismissing the application filed by the appellant-State under Section 30 read with Section 33 of the Act. It was submitted that the Court below has not considered the fact that the Claim No. 1 regarding excess deduction of security deposit was already decided by way of (Downloaded on 21/01/2020 at 08:36:32 PM) (2 of 5) [CMA-1644/2016] interim award by the Joint Arbitrators Shri C.A. Robinson and Shri R.K. Kala which was passed on 25.09.1994 and the same was made Rule of the Court. The interim award has already been acted upon and satisfied by payment of amount awarded under the interim award. It was also submitted by the learned counsel for the appellant-State that if the respondent-claimant was aggrieved against the interim award, whereby no amount of interest was awarded, the respondent-claimant should have filed objections before the Court below but no such objections were filed and allowed the interim award to be made the Rule of the Court. The claimant accepted the awarded amount under the interim award and as such, the interim award passed with regard to the Claim No. 1 has already attained finality and now the Umpire has no jurisdiction to adjudicate and reopen the issue regarding Claim No.1. It was argued that the interim award is as good as final award which cannot be termed as interim order subject to the final decision of the main proceedings. It was further submitted that the findings of the Umpire with regard to the Claim No.1 of the impugned award are perverse and without jurisdiction. It was submitted that no finding was given by the Umpire that on what basis he calculated the amount of Rs. 32.00 lacs while dealing with Claim No.1. The learned Umpire also erred in allowing further interest @ 12% per annum from 10.04.2002 till realisation of the payment which was never agreed by the parties. The learned counsel for the appellant-State submitted that the procedure which was followed in this case is against the provisions of Arbitration Act. The learned Umpire has acted in the manner as if he was sole arbitrator while in the case of award being passed (Downloaded on 21/01/2020 at 08:36:32 PM) (3 of 5) [CMA-1644/2016] by the Umpire, the same should have been signed by the Arbitrators also. It was also submitted that the role of the Umpire comes into play only when there is a difference of opinion between the arbitrators but here in this case, no award was passed by the arbitrators with regard to any claim, thus, there is no question of any difference of opinion. Hence the impugned award passed by the learned Umpire is against the provisions of law, illegal and is without jurisdiction. With the aforesaid submissions, learned counsel for the appellant-State explored this Court to grant interim relief.
On the other hand, learned counsel for the respondent- claimant refuted the submissions made on behalf of the appellant- State and submitted that the final award passed by the learned Umpire is legal and warrants no interference by this Court as all the proceedings in the arbitration matter were conducted with the consent of both the parties and the appellant-State had participated in the proceedings and now it is not open for the appellant-State to question the jurisdiction of the Umpire. It was submitted that the award passed by the joint arbitrators Shri C.A. Robinson and Shri R.K. Kala was only an interim award with regard to the Claim No.1 which was in two parts; one is with regard to refund of excess deduction of security deposit (dealt with by the joint arbitrators by way of interim award) and second is with respect to the interest on excess deduction of security deposit (dealt with by the Umpire while passing the final award). It was also submitted that the interim award was passed jointly by both the arbitrators, Shri C.A. Robinson and Shri R.K. Kala and the (Downloaded on 21/01/2020 at 08:36:32 PM) (4 of 5) [CMA-1644/2016] same was only an interim award and the question of interest was not decided in the aforesaid interim award which was later on dealt with and decided by the Umpire at the time of passing the final award. Thus, there is no illegality with respect to the findings regarding Claim No. 1 given by the Umpire. It was further submitted that the scope of Sections 30 and 34 of the Arbitration Act is very limited and the final award passed by the Umpire can be set aside only on the grounds mentioned in Section 30 of the Act. Herein this case, no such ground exists so as to interfere in the impugned final award passed by the Umpire.
Heard and perused the record.
Record has already been received requisitioned by this Court on 13.12.2017.
Admit. Issue notice.
No need to issue fresh notices as learned counsel Mr. R.N. Bansal puts in appearance on behalf of the respondent-claimant.
Having regard to the submissions advanced by both the parties at the Bar and in the facts and circumstances of the case, this Court deems it appropriate to stay the execution proceedings initiated in pursuance of the award impugned subject to condition that the appellant-State deposits entire amount under the final award as affirmed by the Additional District Judge, Dungarpur vide its order dated 01.04.2016 (amended order dated 29.04.2016) within a period of four weeks from today with the Court below. The amount with regard to the Claim No. 1 shall not be disbursed to the respondent-claimant and the same shall be subject to the (Downloaded on 21/01/2020 at 08:36:32 PM) (5 of 5) [CMA-1644/2016] final decision of the appeal. Rest of the amount shall be disbursed to the respondent-claimant, after obtaining an undertaking from the respondent-claimant incorporating usual conditions. It is also appropriate to order that the Court below shall make appropriate arrangements for the amount so deposited by the appellant-State with regard to the Claim No. 1 and the same shall be kept by the Court below in the form of Fixed Deposit with the Nationalised Bank which shall be subject to the final out-come of this appeal.
List this appeal for final hearing on 17.03.2020.
(ABHAY CHATURVEDI),J /Mohan/-
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