Gauhati High Court
Pranab Kumar Sarma vs Mrs. Rabia Ahmed & Anr on 17 March, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P. No. 380 of 2016
Sri Pranab Kumar Sharma .... Petitioner
Vs
1. Mrs. Rabia Ahmed .... Respondent
2. Landmark Establishment Pvt. Ltd. ....Proforma Respondent For the petitioner : Mr. SP Roy, Mr. RPN Singh, Mr. A. Talukdar, Mr. TR Roy, Ms. NK Poddar, Advs.
For the respondents : Mr. SK Medhi,
Mr. J. Das,
Mr. A. Das,
Mr. S. Dutta, Advs.
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
Date of hearing : 28-02-2017
Date of Judgment : 17-03-2017
JUDGMENT & ORDER(CAV)
Heard Mr. S.P. Roy, learned Counsel for the petitioner and Mr. S.K. Medhi, learned counsel for the Principal Respondent No.1. It appears that no steps for service of notice on the proforma respondent No.2 and accordingly, no notice was issued to the said proforma respondent. However, in view of the order proposed to be passed by this court, issuance of notice on the Proforma Respondent No.2 is dispensed with.
CRP No.380/2016 Page 1 of 92) The gist of dispute amongst the parties is that the Petitioner (in the name of his sole proprietorship firm under the name and style of M/s. Landmark), had entered into an Memorandum of Agreement dated 3rd November, 2000, with the Respondent No.1, by virtue of which the Respondent No.1 had given her land measuring 2 katha- 0 lechas, covered by Dag No. 56 (New), 169 (Old) of K.P. Patta No. 310 (New), 575 (Old) of Village- Sahar Guwahati, Mouza- Guwahati, situated at Machkhowa, M.G. Road, Guwahati for development and for construction of multistoried building on the terms and conditions as contained therein. It was disclosed in the said agreement that the Petitioner had already entered into separate agreements with adjacent land-owners for development of their land and for construction of multistoried building thereon. Under the said agreement, the Respondent No.1 had become entitled to 25% of the built-up area permitted by the authorities corresponding to the land described in schedule appended to the said agreement as well as other amenities like car parking, finished flats/ apartments. It was also provided that the copy of the drawing as approved by the concerned authority would be handed over to the Respondent No.1. The said agreement contained arbitration clause.
3) In course of time, disputes and differences arise between the parties to the said agreement and, as such, the Respondent No.1 herein approached this court under section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of Arbitral Tribunal. In the said application, the Petitioner herein was arrayed as the Respondent No.2 by referring him to be the proprietor of erstwhile M/s. Landmark and the Proforma Respondent No.2 herein was arrayed as the Respondent No.1 therein. As agreed to by the learned counsel for both the sides, this court by order dated 15.05.2009 passed in Arb. Petn. No. 23/2008, appointed Mr. J.N. Khatoniar and Mr. Bhupen Sarma as the arbitrators, further providing that the said arbitrators in turn would name a third Arbitrator and proceed to resolve the dispute arising out of the above mentioned agreement between the parties. In course of time, for various reasons, the arbitrators appointed by this court declined to be the arbitrators and, as such, this court by order dated 18.05.2012 passed in Arb. Petn. No. 19/2010 appointed CRP No.380/2016 Page 2 of 9 Sri Ranjan Kumar Bharali and Sri Dipankar Medhi as the arbitrators, by allowing them to select a third arbitrator as Umpire.
4) On 01.11.2012, the Respondent No.1 had filed her statement of claims and on 11.03.2013, the Petitioner had filed his written statement as well as an application for framing preliminary issue on maintainability of the proceeding on the ground of limitation. The Proforma Respondent No.2 herein, i.e., Landmark Establishment Pvt. Ltd., had filed their written statement separately, taking various pleas as stated therein.
5) In the present revision, the prayer is to set aside and quash the impugned order dated 29.09.2016 passed by the learned Arbitral Tribunal in Arbitral Proceeding No. 4/2012, but in course of hearing, the learned counsel for the petitioner has proceeded to raise various other issues as to maintainability of the arbitration proceeding. He had submitted that the Proforma Respondent No.2 was not a party to the contract containing arbitration agreement and that not the petitioner herein but his proprietorship firm was the party with whom the respondent No.1 had made the agreement in reference and by referring to the case of MD, Army Welfare Housing Organisation V. Sumangal Services (P) Ltd., 2004 AIR SCW 219: (2004) 9 SCC 619, it is urged that the learned Arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract and that he cannot go beyond the reference or the arbitration agreement. He also refers to the case of Chloro Controls India Pvt. Ltd. V. Severn Trent Water Purification Inc. & Ors, (2013) 1 SCC 641, to show that non- signatory or third party to the arbitration agreement cannot be subjected to arbitration proceeding. After carefully considering the said case citations, this court is of the following opinion- (i) that in the present case, the Arbitral Tribunal was constituted by this court by order dated 15.05.2009 passed in Arb. Petn. No. 23/2008, as modified by order dated 18.05.2012 passed in Arb. Petn. No. 19/2010, which was passed on being agreed to by the learned counsel for both the sides, and therefore, having consented to the redressal of dispute by arbitration, it is seen that the Proforma Respondent No.2 has not challenged the arbitration proceeding and, as such, it is not open for the petitioner to argue on behalf of the Proforma Respondent, (ii) in the case of Chloro CRP No.380/2016 Page 3 of 9 Controls India (supra), the issue before the Hon'ble Supreme Court of India was interpretation of Part-II of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "1996 Act"), nevertheless, in paragraph 102 has stated that "Joinder of non-signatory parties to arbitration agreement is not unknown to the arbitration jurisprudence" and with that note, in paragraph 132 has stated that "various legal bases may be applied to bind a non-signatory to an arbitration agreement", and illustrations were given in paragraph 103.1 and 103.2 thereof. Similar observations are also contained in paragraph 105 thereof, (iii) the arbitration proceeding is going on since the year 2012 and, as such, after 5 years, when the case is in final argument stage, it is too late for raising such an issue and that too without any challenge from the party who could have made a challenge at the first instance, (iv) the order passed by the learned Arbitral Tribunal was not irrational, capricious or arbitrary and (iv) even in the present revision, the said issue is not in challenge and, as such, the said issue is only academic. Hence, this court is not inclined to answer the question of maintainability as sought to be raised by the learned counsel for the petitioner.
6) Similarly, the learned counsel for the petitioner has also raised another issue that although by order dated 27.07.2013, the learned Arbitral Tribunal had recorded that it is agreed that the issue of limitation may be framed along with other issues and may be taken up for consideration after the parties adduce evidence, it is submitted that the issue of limitation ought to be taken up before decision on other issues. As recorded in the order dated 27.07.2013, the evidence of the parties has concluded and, as such, now the case is ready for hearing at which stage, the learned Arbitral Tribunal has engaged the services of a "Registered Technical Person" under section 26 of the said 1996 Act to measure the constructed area and, as such, after such task is over, the argument is likely to begin. Be it stated here that the legality of the order dated 27.07.2013 was challenged before this Court by filing CRP No. 438/14 and this court while disposing of the same, did not interfere with the said order dated 27.07.2013. Hence, the petitioner is barred by the principles of respondent-judicata to raise the issue once again and the petitioner, if he may be so advised, argue the said issue along with other issues as directed. This court therefore, rejects the verbal plea raised by the learned counsel for the petitioner for the reason that (i) the said issue is CRP No.380/2016 Page 4 of 9 not formally raised in writing in the present revision and (ii) the said issue having been raised in CRP 438/14, has attained finality in terms of the order passed therein.
7) The challenge in the present revision is, therefore, confined to the order dated 29.09.2016 passed by the learned Arbitral Tribunal in Arbitral Proceeding No.4/2012. By an order dated 15.11.2014, the learned Arbitral Tribunal had appointed a Registered Technical Personal approved by the Guwahati Metropolitan Development Authority under section 26 of the said 1996 Act to physically survey and verify the buildings of the project to find out the actual build up area. The said order along with the hereinbefore referred order dated 27.07.2013 ware both challenged by the petitioner before this Court by filing a revision, which was registered as CRP No.438/2014 and this Court by the order dated 17.12.2015 had upheld the said decision by the Arbitral Tribunal, further expressing its view that the arbitration proceeding be expeditiously disposed of preferably within a period of 6 months. Later on, the said Registered Technical Person so appointed by the learned Arbitral Tribunal, by their letter dated 25.04.2016, expressed their inability to carry out the assigned work. They suggested another name and the respondent No.1 had taken their consent and willingness to carry out the work. The respondent No.1 informed the learned Arbitral Tribunal about the consent from the said firm and accordingly, by the impugned order dated 29.09.2016, the learned Arbitral Tribunal appointed the said other agency as the Registered Technical Person under section 26 of the 1996 Act with the same mandate as earlier i.e. to survey and verify the buildings of the project to find out the actual built up area. The said order dated 29.09.2016, whereby another Registered Technical Person was appointed is in challenge in the present revision. This court is of the view that section 26 empowers the learned Arbitral Tribunal to seek assistance from such expert for arriving at a just and proper decision.
8) The hearing of the matter was completed by the learned counsel for the petitioner as well as Respondent No.1 on 28.02.2017, but later on while preparing this order, it appeared from the perusal of the order sheet that notices were not issued to the Proforma Respondent No.2 and, as such, the matter was listed on 03.03.2017 for being spoken to the learned counsels for the contesting parties about the same.
CRP No.380/2016 Page 5 of 99) In view of the second successive challenges made by the present petitioner against various orders passed by the learned Arbitral Tribunal, this Court was compelled to make an introspection as to whether this Court can be reduced to an ordinary court of appeal by challenging each and every order passed by the Arbitral Tribunal constituted and appointed under the provisions of the 1996 Act, merely by invoking the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. In the quest for an answer to that this Court has revisited the various provisions of the said 1996 Act. It is seen that the said Act is a full Code within itself. The Act contains a full mechanism for adjudication, which encompasses the provisions for appointment of an expert to assist the Tribunal and also provides for court assistance in taking evidence. The Arbitral Tribunal is empowered to formulate its own procedures. The 1996 Act prescribes the form and contents of the Arbitral award, procedure for termination of proceeding, correction and interpretation of award, making of additional award. It also provides for a procedure for setting aside the Arbitral award, provisions for finality of the award and for its enforcement. The said 1996 Act also stipulates the orders which are appealable. Therefore, as adequate provisions have been made for redressal and remedy by and under the said 1996 Act, it is the opinion of this court that the remedy provided only by that statue must be availed of.
10) While there cannot be any dispute that this Court under Article 227 of the Constitution of India does have the superintending jurisdiction over all courts and Tribunals within the territorial jurisdiction of this Court, but it is altogether a different thing to say that each and every petition filed under Article 227 of the Constitution of India must be entertained by the High Court as a matter of course, ignoring the fact that the aggrieved person has an effective alternative remedy. Reference may be made to the decision of the Hon'ble Supreme Court in the case of Thansingh Nathmal and others vs. Supdt. of Taxes, AIR 1964 SC 1419, where the Constitution Bench had made the following observation:
"Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or CRP No.380/2016 Page 6 of 9 the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed. The appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Art. 226 and sought to reopen the decision of the taxing authorities on questions of fact. The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up."CRP No.380/2016 Page 7 of 9
11) Similarly, in the case of Kaniyalal Lalchand Sachdev and others vs. State of Maharashtra and others , (2011) 2 SCC 782, the Hon'ble Supreme Court has held that the High Court was right in dismissing the writ petition on the ground of efficacious remedy being available, holding that as it is well settled that ordinary relief under Articles 226 /227 of the Constitution of India is not available if an efficacious alternative is available to any aggrieved person.
12) Therefore, relying on the said principles, this Court is of the view that this is a fit and proper case wherein this Court should exercise self-restraint so as to prevent this Court in becoming a regular court of appeal against each and every order passed by the learned Arbitral Tribunal.
13) As already stated earlier that this Court in CRP No. 438/2014, has expressed its intention that the proceedings of Arbitral Proceeding No. 4/2012 amongst the parties herein be decided as expeditiously as possible, expecting the completion of the proceeding within 6 (six) months from 17.12.2015. Hence, this court is of the view that the said order is liable to be enforced with full vigour and in the same spirit and cannot be permitted to be whittled away or rendered fruitless. Therefore, this Court is of the opinion that the present case in hand is not a fit or a proper case for invoking its extraordinary jurisdiction under Article 227 of the Constitution of India to entertain a challenge to the order dated 29.09.2016 passed by the learned Arbitral Tribunal (consisting of three learned Arbitrators) in Arbitral Proceeding No. 4/2012.
14) On the final order/ judgment being passed in the said matter, it would be open for any aggrieved party to challenge the final order together with any interlocutory order by filing appropriate application under section 34 of the said 1996 Act or by filing an appeal in terms of the provisions of Section 37 of the said 1996 Act, as may be permitted in law.
15) Be it stated that while issuing notice to the respondents in the present revision, the further proceeding of Arbitral Proceeding No. 4/2012 was stayed.
CRP No.380/2016 Page 8 of 9However, by passing another order today in the connected I.A.(C) No. 26/2017, the said interim order has been vacated.
16) For the reasons as indicated above, the present revision is dismissed. The learned Arbitral Tribunal may now proceed to decide the matter as expeditiously as possible. The parties are left to bear their own cost.
JUDGE MKS/ CRP No.380/2016 Page 9 of 9