Himachal Pradesh High Court
M/S S.B. Trading Co vs The State Of Hp And Another on 1 July, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Arb. Appeal No. 6 of 2009.
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Decided on: 01.07.2019.
M/s S.B. Trading Co. ....Appellant
Versus
The State of HP and another .....Respondents
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1 Yes
For the appellant : Mr. J.S. Bhogal, Sr. Advocate with
Mr. T.S. Bhogal, Advocate.
For the respondents : Mr. Dinesh Thakur, Additional
Advocate General with M/s R.P.
Singh and Amit Kumar Dhumal,
Deputy Advocate Generals.
Ajay Mohan Goel, Judge (Oral)
This arbitration appeal under Section 37 of the Arbitration and Conciliation Act, 1996, has been filed against order passed by the Court of learned Additional District Judge (1), Kangra at Dharamshala in RBT Arbitration Case No. 2-D/06/02, decided on 31.03.2009, vide which Objections preferred by the present appellant under Section 34(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the '1996 Act') against Award ::: Downloaded on - 29/09/2019 00:10:26 :::HCHP passed by learned Arbitrator dated 08.02.2002 have been dismissed.
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2. This case has peculiar facts. Arbitration proceedings stood initiated as per the agreement entered into between the parties under the provisions of Arbitration Act, 1940 (hereinafter referred to as the '1940 Act'). An Award was passed by the Arbitrator under the provisions of old Act ( 1940 Act), which stood assailed by the respondents-State.
The Objections so filed by the State were allowed and the matter was remanded back to the learned Arbitrator for afresh adjudication. The first Award was passed by the learned Arbitrator on 04.08.1995 and the same was set aside on 31.07.2000 by the Court of learned Senior Sub Judge Kangra at Dharamshala.
3. Upon remand, a fresh Award was passed by the Arbitrator dated 08.02.2002. During the pendency of the said proceedings, the Arbitration and Conciliation Act, 1996 came into force and the 1940 Act was repealed. There is nothing on record to suggest that after the remand of the matter, the parties agreed before the Arbitrator that the matter be proceeded in accordance with 1996 Act, however, a perusal of para 3 of the latter Award passed by the arbitrator ::: Downloaded on - 29/09/2019 00:10:26 :::HCHP demonstrates that the same was passed by the Arbitrator under 1996 Act.
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4. Feeling aggrieved by the Award so passed by the learned Arbitrator, Objections were filed against the same by the present appellant under Section 34(3) of the Arbitration and Conciliation Act, 1996. Objection with regard to maintainability of the said "Objections" was raised by the present respondents on the ground that the same having been filed under Section 34(3) of the 1996 Act were not maintainable, because, as there was no consent given by both the parties to the Arbitrator while deciding the later award that proceedings be held under new Act, it was incumbent upon the learned Arbitrator to have had passed the award under the provisions of 1940 Act. Record demonstrates that said contention of the respondent did not find favour with the learned Court below. However, the "Objections" filed by the present appellant otherwise also did not find favour on merit with it and accordingly, the same were dismissed.
5. Feeling aggrieved, the present appeal was filed.
6. Mr. J.S. Bhogal, learned Senior Counsel for the appellant has argued that the order passed by the learned Court below on the Objections filed by the present appellant ::: Downloaded on - 29/09/2019 00:10:26 :::HCHP under Section 34(3) of the 1996 Act is void ab initio because as the Award impugned was deemed to have been passed .
under the 1940 Act, therefore, the Objections to the same ought to have been filed under the provisions of the old Act and this important aspect of the matter has been ignored by the learned Court below while passing the impugned order.
7. Learned Deputy Advocate General has argued that the plea raised by learned Senior Counsel for the appellant is not available to the appellant because the "Objections" which stand rejected by learned Court below were filed by the appellant and the appellant cannot be permitted to take benefit of his own acts of omission. He has argued that if the appellant had filed objections under wrong provisions of law, then the appellant has to suffer for its mistake.
8. I have heard learned Counsel for the parties and also gone through the record of the case as also the relevant provisions of the Statute.
9. It is not in dispute that in terms of the agreement entered into between the parties, the Arbitration process was put in motion under the provisions of 1940 Act and the initial Award was passed by the learned Arbitrator before 1996 Act came into force. It is also a matter of record that Objections ::: Downloaded on - 29/09/2019 00:10:26 :::HCHP filed against the said award by the State under the provisions of 1940 Act found favour with learned Senior Civil Judge, .
Kangra and after allowing the same and setting aside the Award, the matter was again remanded to the Arbitrator for adjudication afresh.
10. Now incidentally, though it is mentioned in the Award which was subsequently passed by the learned Arbitrator that he was passing the same under the provisions of 1996 Act, however, as the arbitration proceedings stood initiated under the old Act, the Arbitrator could not have had announced the Award under the new Act and for all intents and purposes, the Award has to be held to be announced under the provisions of the old Act. This is for the reason that after remand, as has already been taken note of by me earlier also, parties did not give any consent to the Arbitrator to thereafter proceed with the matter under the provisions of the new Act. Now, because it has been held by me that the Award announced by the Arbitrator has to be construed as Award passed under the 1940 Act, then, but obvious, Objections against the same were maintainable under the old Act and not under the old Act. This important aspect of the matter has been ignored by the learned Court below while ::: Downloaded on - 29/09/2019 00:10:26 :::HCHP adjudicating the Objections filed by the present appellant against the Award, which Objections having had been filed .
under the 1996 Act were not maintainable. The pronouncement upon the said Objections by the learned Court below thus is per se bad in law and is liable to be quashed and set aside de hors the fact that the Objections were filed before it by the present appellant.
11. In these circumstances, this appeal is partly allowed. Impugned order i.e. order dated 31.03.2009 passed in Case No. 2-D/06/02 by learned Additional District Judge, Kangra at Dharamshala, is set aside and the matter is remanded back to the learned Court below with the direction that the Objections filed by the present appellant be adjudicated afresh in accordance with law, including the question of maintainability of the Objections.
12. At this stage, learned Senior Counsel appearing for the appellant, on instructions, submits that present appellant be permitted to withdraw the Objections with liberty to take recourse to all such remedies as are available to it in law. It is clarified that if any such request is made by the appellant, then the same shall be dealt with in accordance with law by the learned Court below.
::: Downloaded on - 29/09/2019 00:10:26 :::HCHPThe appeal stands disposed of in above terms, so also pending miscellaneous application(s), if any. No order as .
to cost.
(Ajay Mohan Goel)
Judge
July 01, 2019
(narender)
r to
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