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Chowdhury and Co. Vs. Government of Orissa - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 220 of 1976
Judge
Reported inAIR1978Ori149
ActsArbitration Act, 1940 - Sections 13, 16 and 39(1); Code of Civil Procedure (CPC) - Sections 34
AppellantChowdhury and Co.
RespondentGovernment of Orissa
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateAddl. Govt. Adv.
DispositionAppeal dismissed
Cases ReferredMehta Teja Singh and Co. v. Fertlizer Corporation of India
Excerpt:
.....co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in para 7 of the judgment, it has been clearly indicated :section 17 of the act provides that where the court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or set aside the award, the court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award and upon the gudgment so pronounced a decree shall follow......division bench of this court approved the principle indicated by dua, c. j. (as the learned judge then was) in the case of mehta teja singh and co. v. fertlizer corporation of india, ltd., air 1968 delhi 188.mr. basu made an attempt to distinguish the ratio of the bench decision of this court by saying that no appeal in that case had been preferred against the decree. here too, no appeal has been preferred against the decree and plaintiff's appeal wag entirely directed against refusal of the learned subordinate judge to remit the matter to the arbitrator. i am inclined to hold following the ratio of the bench decision that the appeal is in-competent.4. even if an appeal lay, i do not think, plaintiff has any occasion to be aggrieved by the action of the learned subordinate.....
Judgment:

R.N. Misra, J.

1. This is a plaintiff's appeal against the decision of the learned Subordinate Judge of Cuttack refusing to remit the award made by the Arbitrator.

2. The facts appropriate for disposal of this appeal are the following : Plaintiff is a firm of contractors. It undertook the execution of the work entitled 'Construction of Express way from Daitari Mines to Paradeep Port -- construction of right approach (portion between Mahanadi and Taladanda canal bridge) and right guide bund of high-level bridge across the river Mahanadi at 84th mile of Expressway Reach No. XIII.' Contract No. 76 F2 of 1966-67 was duly executed. Dispute arose out of the contract and the Chief Engineer in terms of the arbitration clause appointed a Superintending Engineer to arbitrate. 41 heads of claim were referred to the Arbitrator. The Arbitrator dealt with the claims item-wise and as against a total claim of Rs. 18,00,865.72 paise, the Arbitrator made an award for Rs. 64,260.58 paise. The Arbitrator sent his award to the court of the learned Subordinate Judge at Cut-tack requesting for action under Section 14(2) of the Arbitration Act. On notice from the court, the State Government applied for making the award a rule of the court, while on behalf of the plaintiff prayer was made for accepting the award in respect of certain items and for remitting the award to the Arbitrator for re-consideration of plaintiff's claim in respect of certain items. The learned Subordinate Judge refused to remit the award and made it a rule of the court. This appeal has been directed against that order of the learned Subordinate Judge. Obviously plaintiff's grievance is against non-remission of the award for a reconsideration of the several heads of its claims as pray-ed for.

3. At the hearing, on behalf of the State a preliminary objection has been raised to the maintainability of the appeal. Mr. Basu for the appellant maintains that the appeal has been filed under Section 39(1)(vi) of the Arbitration Act which provides that an appeal shall lie from an order setting aside or refusing to set aside an award. The power to remit an award for further consideration is specifically vested in the court under Section 16 of the Act which provides :

'(1) The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit;

(a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; or

(b) where the award is so indefinite as to be incapable of execution; or

(c) where an objection to the legality of the award is apparent upon the face of it.'

Admittedly, Section 39 does not provide an appeal against an order of the court remitting or refusing to remit an award and in a simple case of remission of the award, no appeal as such would lie. Where, however, the award has been made a rule of the court in part and on certain items of claim the court has refused to set aside the award and direct a remand, an appeal would lie on the: ground that the court has refused to set aside the other part of the award. See, Jayantilal Keshavlal Dave v. Surendra Gangsa Johrapurkar, AIR 1956 Nag 245 and Vengu Ayyar v. Yegyam Ayyar, AIR 1951 Mad 414. Reliance is placed on a Bench decision of this Court in the case of Sachidananda Misra v. Executive Engineer, Earth Dam Division Balimela Dam Project, AIR 1975 Ori 203, for the position that a bare order refusing to remit the award is not appealable. In para 7 of the judgment, it has been clearly indicated :

'Section 17 of the Act provides that where the court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or set aside the award, the court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award and upon the gudgment so pronounced a decree shall follow. This section bars an appeal against the decree except on the ground that it is in excess of, or not otherwise in accord-ance with the award. The appellant has not preferred any appeal against the decree which has now become final and conclusive between the parties. Consequently, the present miscellaneous appeal is incompetent.'

The Division Bench of this Court approved the principle indicated by Dua, C. J. (as the learned Judge then was) in the case of Mehta Teja Singh and Co. v. Fertlizer Corporation of India, Ltd., AIR 1968 Delhi 188.

Mr. Basu made an attempt to distinguish the ratio of the Bench decision of this Court by saying that no appeal in that case had been preferred against the decree. Here too, no appeal has been preferred against the decree and plaintiff's appeal wag entirely directed against refusal of the learned Subordinate Judge to remit the matter to the Arbitrator. I am inclined to hold following the ratio of the Bench decision that the appeal is in-competent.

4. Even if an appeal lay, I do not think, plaintiff has any occasion to be aggrieved by the action of the learned Subordinate Judge. 41 items of dispute had been referred to the Arbitrator as would appear from the award itself. Compensation for withholding of the money from the date of raising of the bill till making of the award does not appear to be an item of dispute specifically refer-red to the Arbitrator. If such a dispute had been referred, even if the Arbitrator was not a court, on the analogy of Section 34 of the Civil P.C. pendente lite interest could have been given. It was for the claimant to raise a specific claim in regard to interest by way of compensation from the date of the bill till the date of the reference of the dispute to arbitration. Even if such a dispute had been referred, it was open to the Arbitrator while dealing with the claims itemwise to refuse without giving reasons for that claim. In the these circumstances, plaintiff has no occasion to be aggrieved for non-grant of interest representing compensation.

5. The appeal is not maintainable and even on merits, plaintiff is not entitled to relief. The same fails and is thus dismissed, I make no order as to costs.


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