Punjab-Haryana High Court
Punjab State And Another vs C & C Constructions Ltd. And Others on 30 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No. 5258 of 2013 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No. 5258 of 2013 (O&M)
Date of Decision: August 30, 2013
Punjab State and another
... Petitioners
Versus
C & C Constructions Ltd. and others
... 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. T.N. Sarup, Addl. A.G., Punjab.
Paramjeet Singh, J. (Oral)
Present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 30.04.2013 (Annexure P/1) passed by learned District Judge, Kapurthala, whereby application filed by respondent no.1 for recalling order dated 15.02.2012 has been accepted.
Brief facts relevant for disposal of the present petition are that the work was awarded to respondent no.1 for Rs.54,72,09,750/- as per Contract with a rebate of 7.5% vide Chief Engineer (NH) Punjab, PWD (B&R), Patiala office letter dated 29.06.2007 with a completion time of 18 Kumar Virender 2013.09.04 14:14 I attest to the accuracy and integrity of this document CR No. 5258 of 2013 (O&M) 2 months. The work was completed on 30.07.2009. Certain disputes arose between the parties. The matter in dispute was referred to the Arbitral Tribunal. The Arbitral Tribunal earlier vide its award dated 05.02.2011 awarded a total sum of Rs. 113,19,800/- under claim Nos.1(A), 1(B) and 2 in favour of the respondent no.1. Thereafter, vide award dated 14.02.2011, the Arbitral Tribunal corrected the award and awarded a total sum of Rs.37,88,871/- under claim nos. 1 and 2. Aggrieved against the award dated 05.02.2011 and further corrected award dated 14.02.2011, the petitioners filed a petition under Section 34 read with Section 31(3) and 28 (1) of the Arbitration and Conciliation Act, 1996. The respondents contested the said petition by raising various objections. Rejoinder was also filed. From the pleadings of the parties, the learned District Judge, Kapurthala, framed the following issues vide order dated 15.02.2012:-
"1. Whether the Award dated 05.02.2011 is liable to be set aside on the grounds mentioned in the petition? OPA
2. Whether the present petition is not maintainable in the present form? OPR
3. Whether the petitioners are entitled to the relief as claimed for? OPA
4. Relief."
Thereafter, respondent no.1 filed an application for recalling the order dated 15.02.2012, stating that for deciding the petition under Section 34 read with Section 28(1) and Section 31(3) of the Arbitration & Conciliation Act, 1996, issues are not required to be framed nor any evidence is required to be recorded. Vide the impugned order dated Kumar Virender 2013.09.04 14:14 I attest to the accuracy and integrity of this document CR No. 5258 of 2013 (O&M) 3 30.04.2013, learned District Judge accepted the application and order dated 15.02.2012 has been recalled. Hence, this revision petition.
I have heard learned State counsel and perused the record. Learned State counsel vehemently contended that the impugned order is not sustainable in the eyes of law. Learned State counsel further contended that the trial Court has not granted an opportunity to the petitioners to lead their evidence.
I have considered the contentions raised by the learned State counsel and perused the record.
In view of the settled law laid down by the Hon'ble Supreme Court in Fiza Developers and Inter-Trade Private Limited vs. AMCI (India) Private Limited and another, (2009) 17 Supreme Court Cases 796,, the issues are not required to be framed in the proceedings arising out of the arbitration agreement before the Arbitral Tribunal and the evidence is not required to be led as is required in the Civil Court. However, the Court can frame questions which may arise for adjudication. The Court can afford opportunity to lead evidence by way of affidavits. The scope of enquiry in proceedings under Section 34 of the Act is restricted to the grounds mentioned in Section 34(2) of the Act for setting aside the award. The grounds for setting aside are specifically mentioned under the provisions of the Act. As per the provisions of Section 34(2) of the Act, the burden of proof is on the person who makes the application. Framing of issues is necessary only where the material proposition of facts or law is affirmed by one party and denied by other. In those Kumar Virender 2013.09.04 14:14 I attest to the accuracy and integrity of this document CR No. 5258 of 2013 (O&M) 4 circumstances, the Court can frame issue. In the case of arbitration proceedings, Court can only frame questions of law for adjudication, this exercise can be undertaken before the Arbitrator as per the provisions of the statute and the proceedings being summary in nature and evidence by way of affidavits can be permitted.
An application under Section 34 of the Act is a single issue proceeding, where the very fact that the application has been instituted under that particular provision declares the issue involved. Any further exercise to frame issues will only delay the proceedings. As such, in view of the settled law specifically the proposition of law laid down in Fiza Developers's case (supra), issues are not required to be framed in application under Section 34 of the Act.
So far as the leading of evidence is concerned, the proceedings under Section 34 of the Act being summary in nature, evidence as required in Civil Court is not required to be led. However, for adjudication of a question of law or fact in summary proceedings, the evidence can be led by way of affidavits only. While doing so, the applicant can be afforded opportunity to file affidavit of his witness in proof of his assertions in the application and corresponding opportunity is required to be given to the respondent to place on record his evidence by way of affidavit where-ever the case so warrants. In certain peculiar circumstances where the case so warrants, the Court may permit cross- examination of persons swearing the affidavits. Since the proceedings are summary in nature, the cross-examination should not be permitted in a Kumar Virender 2013.09.04 14:14 I attest to the accuracy and integrity of this document CR No. 5258 of 2013 (O&M) 5 routine manner.
From the perusal of the provisions of Section 34 of the Act, it is clear that issues as contemplated under Order 14 Rule 1 of the Code of Civil Procedure are not an integral part of the process of proceedings under Section 34 of the Act.
In view of the above discussion, while upholding the impugned order, the instant revision petition is disposed of with a direction to learned District Judge to frame questions of law for adjudication and may afford opportunity to the parties for leading evidence by way of affidavit as is required in summary proceedings.
August 30, 2013 [Paramjeet Singh]
vkd Judge
Kumar Virender
2013.09.04 14:14
I attest to the accuracy and
integrity of this document