Punjab-Haryana High Court
M/S. Shiv Shanker Rice Mills vs Punjab State Cooperative Supply & ... on 2 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.4567 of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.4567 of 2004 (O & M)
Date of Decision:02.08.2013.
M/s. Shiv Shanker Rice Mills, Barnala
..Petitioner
Versus
Punjab State Cooperative Supply & Marketing Federation Ltd. Markfed
and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Ravish Bansal, Advocate,
for the petitioner.
Mr. B.B.S.Sobti, Advocate,
for the respondents.
****
PARAMJEET SINGH, J.
Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 11.08.2004 (Annexure P-10) passed by learned District Judge, Sangrur whereby CR No.4567 of 2004 2 order dated 24.03.2004 (Annexure P-8) allowing the petitioner to lead evidence after framing of issues by the trial Court passed on application under Section 34 of the Arbitration and Conciliation Act, 1996 has been impliedly recalled. On 24.03.2004 and 11.8.2004, the following orders were passed which read as under:
"Present: Counsel for the petitioner.
Sh. J.K.Garg Advocate appeared for respondent no.1 written reply filed. Copy given. Heard. On the pleadings of parties, the following issues are framed:-
1. Whether the award dated 19.11.03 is liable to be set aside for the reason mentioned in the petition?OPP
2. Relief.
No other issue arises or pressed. To come upon 20.5.2004 for evidence of applicant. PF/DM/list of witnesses/documents/affidavits be filed within seven days. Fresh notice be issued to arbitrator to send the file before that date.
Dt.24.03.04 -sd/-
Jagroop Singh
Distt. Judge
Sangrur"
"Present: Counsel for the parties.
Naresh Kumar PW. Accountant of Markfed is
present. His examination is opposed by the counsel for CR No.4567 of 2004 3 the respondents on the ground that evidence cannot be led because the applicants had sufficient opportunity to produce this evidence before the arbitrator and therefore, the evidence which was to be led before the arbitrator, cannot be allowed to be produced here. Otherwise also, the proposed evidence does not fall under any of the clauses of Section 34 (2) of the Arbitration and Conciliation Act, 1996. I accordingly discharge the witness. No other witness is present. Adjournment is prayed. To come up on 13.9.04 for evidence of the applicant. It shall be last opportunity to the applicants.
Dt.11.8.04 -sd/-
Jagroop Singh
District Judge"
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner has vehemently contended that in this case, issues were framed vide order dated 24.03.2004 (Annexure P-8) and the case was fixed for evidence of the petitioner- objector. Vide impugned order dated 11.08.2004 (Annexure P-10), the order dated 24.03.2004 has been withdrawn which is clearly illegal, arbitrary, without jurisdiction and is not sustainable in the eyes of law. The learned counsel has further contended that once the issues were framed, there was no occasion for the Court to withdraw the order and pass the impugned order.
CR No.4567 of 2004 4
Per contra, learned counsel for the respondents has vehemently opposed the contentions of learned counsel for the petitioner and contended that whatever evidence is required to be led, this should have been led before the Arbitrator and it cannot be allowed to be brought before learned District Judge. The learned counsel has further contended that proceedings under Section 34 (2) of the Arbitration and Conciliation Act, 1996 are akin to the appeal, as such same principles will apply. The learned counsel has made reference to the judgment rendered by the Division Bench of this Court in M/s Punjab State Industrial Development Corporation Ltd. vs. Mr. Sunil K. Kansal 2012 (4) Law Herald (P & H) 3619 (DB) to contend that the impugned order dated 11.08.2004 (Annexure P-10) is legal and valid. Earlier order dated 24.3.2004 framing of issues and allowing leading of evidence as if in a civil suit was not legal and valid.
I have considered the rival contentions of learned counsel for the parties and perused the record.
It would be appropriate to re-produce the relevant extract of judgment of Division Bench of this Court rendered in M/s Punjab State Industrial Development Corporation Ltd. vs. Mr. Sunil K. Kansal (supra) which reads as under:
"30. In view of the above, we answer the question of law framed as follows:-
(i) The issues, as required under Order XIV Rule 1 of the Code as in the regular suit, are not required to be mandatorily framed by the Court. However, it is open to CR No.4567 of 2004 5 the Court to frame questions which may arise for adjudication.
(ii) The Court while dealing with the objections under Section 34 of the Act is not bound to grant opportunities to the parties to lead evidence as in the regular civil suit. The jurisdiction of the Court being more akin to the appellate jurisdiction;
(iii)The proceedings before the Court under Section 34 of the Act are summary in nature. Even if some questions of fact or mixed questions of law and/or facts are to be decided, the court while permitting the parties to furnish affidavits in evidence, can summon the witness for cross-examination, if desired by the other party. Such procedure is keeping in view the principles of natural justice, fair play and equity.
In Fiza Developers & Inter Trade P. Ltd. vs. AMCI (I) Pvt. Ltd. and another 2009 (3) Apex Court Judgments 211, the Hon'ble Supreme Court has held as under:
"13. Before concluding, there is a need to clarify the observation by the High Court that a proceeding under section 34 may not be in the nature of adversarial proceedings. In an adversarial process, each party to a dispute presents its case to the neutral adjudicator seeking to demonstrate the correctness of his own case and the wrongness of the other. [See : P.Ramanatha Iyer's Advanced Law Lexicon, Third Edition, Vol.I, Page 152].CR No.4567 of 2004 6
While an applicant in an application under section 34 is interested in getting an order setting aside an award, his opponent is equally interested in ensuring that it is not set aside, but upheld. While an applicant presents his case to the Judge to prove that the award is liable to be set aside, the respondent puts forth his case to refute the claim of the applicant that the award is liable to be set aside. An application under section 34 in that sense is adversarial in nature. But proceedings under section 34 differ from regular civil suits in a significant aspect. In a regular civil suit, in the event of failure to file a defence, it will be lawful for the court to pronounce the judgment on the basis of facts contained in the plaint [Vide Order VIII Rule 5(2) of the Code]. But in an application under section 34, even if there is no contest, the court cannot on the basis of the averments contained in the application, set aside the award. Whether there is contest or not, the applicant has to prove one of the grounds set out in section 34(2)(a) and (b). Even if the applicant does not rely upon the grounds under clause (b), the Court, on its own initiative, may examine the award to find out whether it is liable to be set aside on either of the two grounds mentioned in section 34(2)(b). It is perhaps in this sense, the High Court has stated that the proceedings may not be adversarial. Be that as it may.
14. Having regard to the object of the Act, that is providing an expeditious alternative binding dispute resolution process with minimal court intervention, it is difficult to envisage proceedings under section 34 of the Act as full-fledged regular civil suits under Code of Civil Procedure. Applications under section 34 of the Act are summary proceedings with provision for objections by the defendant/respondent, followed by an opportunity to the CR No.4567 of 2004 7 applicant to `prove' the existence of any ground under section 34(2). The applicant is permitted to file affidavits of his witnesses in proof. A corresponding opportunity is given to the defendant/respondent to place his evidence by affidavit. Where the case so warrants, the court permits cross-examination of the persons swearing to the affidavit. Thereafter, court hears arguments and/or receives written submissions and decides the matter. This is of course the routine procedure. The Court may vary the said procedure, depending upon the facts of any particular case or the local rules. What is however clear is that framing of issues as contemplated under Rule 1 of Order 14 of the Code is not an integral part of the process of a proceedings under section 34 of the Act.
15. We therefore find no reason to interfere with the impugned order of the High Court. The appeal is dismissed. As the award is of the year 2005, we request the City Civil Court to dispose of the application expeditiously."
In view of settled principle of law, there is no doubt that the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 are not civil proceeding like in a civil suit, rather the same are summary proceedings. In such proceedings, neither issues are required to be framed, nor it is permissible that such proceedings should follow the provisions of Code of Civil Procedure in respect of leading evidence. The Court can only frame the legal points for determination and may afford opportunity to lead evidence by way of affidavits to both the parties. There is no provision for wholesale or automatic import of all the provisions of the Code of Civil Procedure. CR No.4567 of 2004 8
So far as the judgment rendered in Amrik Singh and another vs. Vardhan Properties and Investment Ltd. 2006 (4) R.C.R. (Civil) 521 cited by learned counsel for the petitioner is concerned, the same has not been considered by the Division Bench of this Court in M/s Punjab State Industrial Development Corporation Ltd. (supra), as such it will have no application to the facts of the case.
In view of settled position of law as stated above, I do not find any illegality or perversity in the impugned order dated 11.08.2004 (Annexure P-10).
Dismissed.
(Paramjeet Singh) Judge August 02, 2013 Manoj Bhutani/parveen kumar