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Patna High Court - Orders

The State Of Bihar & Anr vs Work Manager,Bihar Cons.Corp. on 13 February, 2012

Author: Rakesh Kumar

Bench: Rakesh Kumar

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                    Miscellaneous Appeal No.342 of 2009
                  ======================================================
                  1. The State Of Bihar through the Executive Engineer, Flood Control
                     Division, Navgachia, P.S. Navgachia, District-Bhagalpur
                  2. Executive Engineer, Flood Control Division, Navgachia, P.S.
                     Navgachia, District-Bhagalpur
                                                          ------Applicants.... .... Appellants
                                                    Versus
                  1. Work Manager, Bihar Construction Corporation Ltd. Purnea Unit,
                     P.S. Purnea, District-Purnea
                  2. M/S Bhavani Construction and Company, Palamu, P.S. + District-
                     Palamu
                                                       -------Opp.Parties.... .... Respondents
                  ======================================================
                  Appearance:
                  For the Appellant/s      : Mr. Baidya N.Thakur(Ac-Sc18)
                  For the Respondent/s      : Mr.
                                               Mr. B.J.Ojha
                                               Mr. Rama Kant Yadav

                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
                  ORAL ORDER
                                       --------------

13   13-02-2012

Heard Sri Baidyanath Thakur, learned A.C. to Standing Counsel No.4, Sri R.K. Shukla, learned counsel appearing on behalf of Respondent no.1/Bihar Construction Corporation Ltd. and Sri Ajay Kumar Sinha, learned counsel appearing on behalf of Respondent no.2/ M/S Bhavani Construction and Company, Palamu.

The present appeal under Section 37 (1) (b) of the Arbitration and Conciliation Act,1996 ( hereinafter referred to as the "Arbitration Act") has been preferred against an order dated 05.12.2008 passed in Misc. Case No.09/05 arising out of Arbitration Proceeding Case No.1/04. By the said order, learned 2 Patna High Court MA No.342 of 2009 (13) dt.13-02-2012 2/4 Sub-Judge-1st, Katihar has rejected the Miscellaneous Case filed by the appellants under Section 34 of the Arbitration Act only on the ground of its maintainability.

Learned counsel for the appellants, while placing the impugned order, submits that the learned court below has not entertained the Miscellaneous Case on the ground that in this case arbitrator was appointed by the order passed by this Court and in other cases, payment was also made after intervention of this Court in its writ jurisdiction and only on the aforesaid two grounds, the learned court below has dismissed the Miscellaneous Case on the point of maintainability. Learned counsel for the appellants submits that once the arbitrator was appointed and award has been prepared, the consequences would be followed as per the Arbitration Act and, as such, the Miscellaneous Case, which was filed for setting aside the award, was required to be entertained and the learned court below has erroneously dismissed the appeal on the point of its maintainability.

Learned counsel for both the Respondents has vigorously opposed the appeal. It was submitted by Sri Ajay Kumar Sinha, learned counsel for the Respondent no.2 that even though the Miscellaneous Case has been rejected on the point of maintainability, otherwise Miscellaneous Case was not having any 3 Patna High Court MA No.342 of 2009 (13) dt.13-02-2012 3/4 merit and was liable to be rejected due to the reason that under the provision of Section 34 of the Arbitration Act, there is very limited scope for interference with an award.

Be that as it may, the fact remains that the learned court below has erroneously rejected the petition on the ground that the arbitrator was appointed as per direction of this Court and payment was also made as per direction of this Court. Once after preparation of the award, the petition was filed under Section 34 of the Arbitration Act, the learned court below was required to proceed within the four corners of Section 34 of the Arbitration Act and was not required to dismiss the petition on the ground of maintainability as indicated above. Accordingly, the Court is of the opinion that the impugned order, i.e. order dated 05.12.2008 is not sustainable in the eye of law and the matter is required to be remitted back to the court below for its re-consideration.

It goes without saying that the learned court below without being prejudiced with this order will proceed with the case in accordance with provision contained in Section-34 of the Arbitration Act. It was submitted by learned counsel for the Respondents that direction may be issued to the learned court below to conclude the hearing in the matter without unnecessary delay.

4/4

In view of the facts and circumstances of the case, while allowing the appeal and remitting the matter back to the court below, it is desirable to direct the court below to proceed with the case expeditiously, so that hearing in Miscellaneous case may be concluded without any delay.

With above observation and direction, the appeal stands allowed.

(Rakesh Kumar, J) NKS/-