Uttarakhand High Court
Union Of India & Another ... vs M/S Ved Prakash Arora on 16 August, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal From Order No.317 of 2008
Union of India & another .......Appellants
Vs.
M/s Ved Prakash Arora .....Respondent
Mr. Sanjay Bhatt, Advocate, for the appellants/Union of India.
Mr. Navneet Kaushik, Advocate, for the respondent.
Hon'ble Sharad Kumar Sharma, J (Oral)
The appellants, herein, by invoking the provisions contained under Section 39 of the Arbitration Act, 1940, had preferred this appeal from order praying for quashing the judgment dated 19.05.2008, as passed by the court of the Civil Judge (Senior Division) Roorkee, District Haridwar in Original Suit No.69 of 2003, "Ved Prakash Arora Vs. Union of India & others", as well as the connected Miscellaneous Case No.01 of 2004, "Union of India Vs. M/s Ved Prakash Arora", whereby the court of learned Civil Judge (Senior Division) Roorkee, District Haridwar, had dismissed the application of the appellants under Section 30 and 33 of the Arbitration Act, and as a consequence thereto, the award dated 17.11.2003, which had been rendered by the Arbitrator has been made as a rule of court.
2. The brief facts, which were the subject matter for consideration before the Arbitrator, were emanating from the contract, which was executed between the appellants and the respondent/contractor, herein, pertaining to the Contract/Agreement No.CEB/10 of 1983-84, for the purposes of the work contract of connection of the existing sewage system to the central sewage system at Roorkee, District Haridwar.
3. On the basis of the reference of the dispute which was raised by the contractor under part of contract IAFW-2249 clause 70, which has been emanating from the terms of the contract, which contemplated that for the redressal of the grievances of the contracting parties by approaching before the Arbitrator. In fact the Arbitrator, 2 who was thus appointed has dealt with the award, and the award was rendered and it had been answered in favour of the contractor/respondent, by an award dated 17.11.2003, whereby, while drawing and assigning logic in paragraph No.43, onwards of the award pertaining to the different claims raised therein, the award was rendered in favour of the respondent/work contractor, herein. The proceedings was drawn before the court of Civil Judge (Senior Division), Roorkee, District Haridwar, by the contractor by invoking the provisions contained under Section 30, to be read with 33 of the Arbitration Act, 1940, whereby the contractor has claimed that as per the provisions of the Act of 1940, the award which was thus rendered on 17.11.2003, may be made as a rule of the court, so that the decree may be accordingly formulated for purposes of enforcement of the award, as per the provisions of the Act of 1940.
4. The application, thus, preferred by the contractor, herein, was objected by the present appellants by raising an independent objection; as against the application which was preferred under Sections 30 and 33 of the Arbitration Act, 1940, as well as their objections by way of the Miscellaneous Case No.01 of 2004, "Union of India Vs. M/s Ved Prakash Arora", against the principal award dated 17.11.2003 itself, which has been decided by the impugned order/judgment 19.05.2008, which is under challenged in the present appeal from order.
5. Learned counsel for the appellants had argued the present appeal from order, which has been filed under Section 39 of the Arbitration Act, 1940, on a very limited pretext, that the learned Arbitrator while rendering the award has travelled beyond the reference, and hence it would render the award itself to be bad and it could not have been made as a rule of the court under Sections 30/33 of the Arbitration Act, 1940. Particularly, the learned counsel for the appellants has drawn the attention of this Court to the questions, which has been formulated by the learned court of Civil Judge, (Senior Division), Roorkee, District Haridwar, on the basis of the application of the respondent which was filed under Section 30 and 33 of the Arbitration Act, 1940, and on the basis of the objections filed 3 by the appellants, the following two questions were exclusively sought to be framed, which are extracted hereunder:-
"1. D;k ek/;LFk }kjk vius vf/kdkj {ks= ds ckgj tkdj vf/kdkjfrZr vYVªkokW;l vkokMZ iapkV ikfjr fd;k x;k gS\ ;fn gka rks bldk izHkkoA 2- okfn fdl vuqrks'k dks ikus dk vf/kdkjh gS\"
6. Primarily even today when the matter was being argued, the learned counsel for the appellants has submitted, that the order rejecting the objection and making the award, as a rule of the court by the impugned order dated 19.05.2008, suffers from the apparent error on the face of the record; for the reason being that the learned Arbitrator had travelled beyond the reference of the dispute which was made to him. Secondly, that whether the applicant/respondent was entitled for any other relief by the court of Civil Judge, (Senior Division), Roorkee, who was then ceased with the proceedings under Sections 30 and 33 of the Arbitration Act, 1940,.
7. Principally after hearing the learned counsels for the parties, this Court has to confine itself on Issue No.1 only, which was primarily the bone of contention, as to whether the Arbitrator has travelled beyond the reference or beyond the question, which was being sought to be adjudicated.
8. In answer to it, the learned counsel for the respondent Shri Navneet Kaushik, has submitted that apart from the fact that the award was rendered on 17.11.2003 i.e. when the appellants had filed their objection, in fact, if both the objections, as it has been preferred on 13.10.2006, and that as preferred on 10.05.2007, in Miscellaneous Case No.01 of 2004, "Union of India Vs. M/s Ved Prakash Arora", his contention is that, the ground on which the challenge was given to the application preferred by the respondent under Sections 30/33 of the Arbitration Act, 1940, while opposing the application for making the award as a rule of the court, was on the ground that the Arbitrator has travelled beyond the reference made.
9. The contention of Shri Navneet Kaushik, learned counsel for the respondent is that the scope of Sections 30/33 of the 4 Arbitration Act, 1940, is very limited, and for the said purposes, the provisions of Sections 30 and 33 of the Arbitration Act, 1940, are extracted hereunder:-
30. Grounds for setting aside award. - An award shall not be set aside except on one or more of the following grounds, namely:-
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35;
(c) that an award has been improperly procured or is otherwise invalid.
33. Arbitration agreement or award to be contested by application. Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits:
Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit."
10. Even on the simplicitor language of the provisions contained under Section 30 of the Arbitration Act, 1940 is concerned, this Court is of the view that the scope of interference or opposing the application for making an award, as a rule of the court is confined to particularly in the given case when the Arbitrator or an Empire, has misconducted himself. Section 30 doesn't contemplate a challenge to the application for making the award as a rule of the court on the ground that the Arbitrator has travelled beyond the award. But, this argument may not be of much relevance, at this stage, because in answer to it, the learned counsel for the appellants has submitted that they have independently filed an objections against the principal award raising the propriety and the manner in which the claim was determined. If the language of Section 30 of the Arbitration Act, 1940, is taken into consideration which grants the scope, to the court of learned Civil Judge (Senior Division) Roorkee, to make an award as a rule of the court for the purposes of enabling, it to be put to execution as a decree.5
11. The scope of the interference in the proceedings under Section 39 of the Arbitration Act, 1940 is quite confined and limited to its implications as contained and confined within the ambit provided under Sections 30 and 33 of the Arbitration Act, 1940. The stage of Sections 30 and 33 of the Arbitration Act, 1940, is being considered by the regular civil courts, for the purposes of making an award, as a decree of the court. It is only the scope of interference called for when the Arbitrator has misconducted himself, which is a subject matter, which could be led to scrutiny in the proceedings under Section 39 of the Arbitration Act, 1940.
12. Apart from it, when the Legislator under Sections 30 and 33 of Act of 1940, has itself confined its scope of an interference limited to the ground of misconduct, then the reference which has been sought to be assailed by the appellants on the ground that the Arbitrator has travelled beyond the reference could not be entertained at this stage, particularly at the stage under Section 39 of the Arbitration Act, 1940, particularly when, on the meticulous scrutinization of the objections which were preferred by the appellants, is taken into consideration, in fact there was no such specific plea raised by the respondent in his objections, that the arbitrator has travelled beyond the question of a reference which was made to him for adjudication. Apart from it, during the course of the argument of this appeal from order, the learned Counsel for the appellants, was called upon by this Court to substantiate his argument, based on the fact as to what was the question which was referred to be decided. However, in the absence of there being any material on record, and more particularly, in the absence of there being any pleadings raised in the objection, the argument, while giving a challenge to the impugned order, on the ground that the Arbitrator has travelled beyond the reference made would be deemed to have not been able to be substantiated by the appellants, herein, while questioning the proceedings under Sections 30/33 of the Arbitration and Conciliation Act.
13. In order to qualify his argument, the learned counsel for the appellants has referred to one of his objections dated 10.05.2007, 6 which was filed in the Miscellaneous Case No.01 of 2004, "Union of India Vs. M/s Ved Prakash Arora", and particularly, a reference has been made to Paragraph No.19 of the said objections. In order to substantiate his argument, that the Arbitrator has travelled beyond the reference made. But, in fact, on scrutinizing the contents of the paragraph No.19, of the objection, which is extracted hereunder:-
19- ;g fd "kiFk i= ds iSjk ua0 21 ds c;kukr xyr gS vkSj Lohdkj ugha gSA e/;LFk egksn; us Lo;a esa vFkok e/;LFk dk;Zokgh esa dksbZ feldUMdV ugha fd;kA izkFkhZ dh okn }kjk izLrqr djus dks dksbZ vk/kkj ;k dkj.k izkIr ugha gSA
14. In fact, it was a very vague assertion which was made pertaining to the misconduct of the Arbitrator, but rather it was for an act of misconduct by an Arbitrator, will always be dependent upon an establishment of fact by way of the evidence and the material, which was required to be brought on record by the appellants before the court below which too were to be proved, when he was opposing the application under Sections 30 and 33 of the Arbitration Act, 1940.
15. Hence, this Court is of the view that exclusively the pleadings raised in paragraph No.19, of the objection, cannot be taken and read as to be the basis even for the purposes of sub-clause (a) of Section 30 of the Arbitration Act, 1940, that the Arbitrator has misconducted himself. Though it is not a ground of the challenge in the present appeal from order. The interpretation given to paragraph No.19, to the objection, as it has been raised by the learned counsel for the appellants, that it ought to be treated as to be a plea taken in relation to the ground, taken by him that the Arbitrator has travelled beyond the reference made, this Court is not in agreement with the argument which has been extended by the learned counsel for the appellants; because exclusively if paragraph No.19, as well as collectively if the entire objection is taken by the appellants on 10.05.2007, or if the objection as taken by the appellants on 13.10.2006, are taken into consideration, there is no such plea which was ever raised before the Court that the Arbitrator has travelled beyond the reference, and that too particularly, in an appeal under Section 39 of the Arbitration Act, 1940. It was rather the appellants, who had to shoulder the responsibilities and discharge his burden of 7 proof, to establish the scope of reference? the source of reference?
what was the reference? which was made to the Arbitrator to decide the dispute. However there is no dispute, that the reference was established to be adjudicated by the Arbitrator on 17.11.2003.
16. All these facts and the material, are apparently missing from record. Hence, at this stage, the contention raised by the learned counsel for the appellants that the arbitral award of 17.11.2003, was beyond the scope of the reference, cannot be accepted, because even otherwise also, if the findings which has been recorded on Issue No.1, is taken into consideration, the learned court of learned Civil Judge (Senior Division), Roorkee, Haridwar, after considering the rival contentions, as well as a judicial prudence relied by the learned counsel for parties, have come to the conclusion that on the scrutiny of the terms of the contract, which was executed between the parties in fact the adjudication, which was being made by the Arbitrator, vide his award of 17.11.2003, does not reflect that the Arbitrator has travelled beyond the question of reference which was made before him. Hence, the said Issue No.1, which was formulated from the said prospective was answered against the appellant.
17. In these eventualities, I am of the view that while scrutinizing the appeal under Section 39 of the Arbitration Act, 1940, this Court cannot widened the scope of the argument, what has been not built up by the appellants before the proceedings of the court of Civil Judge (Senior Divison), Roorkee, itself, where his application under Sections 30/33 of the Arbitration Act, 1940, itself was being considered. Hence for the reasons aforesaid, I do not find any perversity in the findings, which has been recorded by the learned court below in the impugned order, which is under challenged while rejecting the objection of the appellant and making the award of 17.11.2003, as a rule of the court. Accordingly, the appeal from order lacks merit and the same is hereby dismissed.
(Sharad Kumar Sharma, J.) 16.08.2021 NR/