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Duryodhan Mohapatra Vs. Executive Engineer, Irrigation Division - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 115 of 1982
Judge
Reported inAIR1984Ori217
ActsArbitration Act, 1940 - Sections 16, 30 and 39
AppellantDuryodhan Mohapatra
RespondentExecutive Engineer, Irrigation Division
Appellant AdvocateB. Misra and ;K. Patnaik, Advs.
Respondent AdvocateAddl. Standing Counsel
DispositionAppeal allowed
Cases ReferredMakeshwar Misra v. Laliteshwar Prasad Singh
Excerpt:
.....that the arbitrator is entitled to pass a lump sum award without assigning any reason whatsoever. 6. in the result i, therefore, hold that the order directing remittance of the award to the arbitrator is bad in law and is hereby set aside......his award d/- 30-1-81 allowed a sum of rs. 1,00,000/- under claim hem no. 5,and rs. 55,000/- under claim item no. 7. under claim item no. 5, the plaintiff had claimed rs. 2,25,623/- and item no. 7 relates to the claim of interest. the arbitrator allowed interest at the rate of 6 1/4% from 16-12-77 which is the date of the award and calculated interest on rupees 1,10,000/- to be rs. 55,000/-. on receipt of the award, the court registered it as a suit and both the parties were noticed by the court to file their objection, if any. in pursuance of the notice, the defendant executive engineer filed objection under section 30 arbitration act, challenging the award, which was registered as misc. case no. 154 of 1981. after hearing the objection filed by the defendant, the subordinate judge by.....
Judgment:

P.C. Misra, J.

1. The plaintiff in O. S. No. 23 of 1981 of the court of the Subordinate Judge, Bhubaneswar, is the appellant in this appeal.

2. On 16-3-68, the plaintiff had entered into a contract and signed agreement for excavation of Boudh main canal from RD 60900 to RD 77000 under the Salki Irrigation Project. As dispute arose between the parties relating to the aforesaid work. Shri B.C. Patnaik, Additional Chief Engineer, Minor Irrigation was appointed as Arbitrator to decide the dispute. The plaintiff claimed a total sum of Rs. 7,60,440/- under different items and the said claim was contested by the Executive Engineer, Irrigation Division, Boudh Dist. Phulbani. The Arbitrator in his award D/- 30-1-81 allowed a sum of Rs. 1,00,000/- under claim Hem No. 5,and Rs. 55,000/- under claim item No. 7. Under claim item No. 5, the plaintiff had claimed Rs. 2,25,623/- and item No. 7 relates to the claim of interest. The Arbitrator allowed interest at the rate of 6 1/4% from 16-12-77 which is the date of the award and calculated interest on Rupees 1,10,000/- to be Rs. 55,000/-. On receipt of the award, the court registered it as a suit and both the parties were noticed by the Court to file their objection, if any. In pursuance of the notice, the defendant Executive Engineer filed objection under Section 30 Arbitration Act, challenging the award, which was registered as Misc. Case No. 154 of 1981. After hearing the objection filed by the defendant, the Subordinate Judge by the impugned judgment has remitted back the award to the Arbitrator for considering the claim under item No. 5 in the light of the observations made by the Court and to resubmit the same within two months from the date of the judgment. This Misc. Appeal is directed against the said judgment.

3. A preliminary objection was taken by the Additional Standing Counsel to the effect that this appeal is not maintainable. It was urged that the award has been remitted to the Arbitrator under Section 16 of the Act and no appeal is provided under Section 39 thereof. Section 39 of the Act enumerates the orders passed under the Act which are appealable. It is submitted that an order remitting the award being not appealable under Section 39 of the Act, this appeal is incompetent. Mr. Misra appearing for the appellant contends that an appeal shall lie from an order setting aside or refusing to set aside an award and as the order remitting the award in this case amounts to setting aside the award an appeal shall lie. Admittedly, Section 39 does not provide an appeal against an order of the court remitting or refusing to remit an award. The Additional Standing Counsel relied on a decision reported in AIR 1976 Orissa 149, Chowdhury and Co. v. Govt. of Orissa, wherein it has been held that in a simple case of remission of the award no appeal as such would lie. It has, however, been observed in the said decision that where the award has been made a rule of the Court in part and with respect to certain items of claim the court has refused to set aside the award and directs a remand, an appeal would lie on the ground that the court has refused to set aside the other part of the award. Mr. Misra, on the other hand, relies on a Full Bench decision of the Patna High Court reported in AIR 1967 Patna 407, Makeshwar Misra v. Laliteshwar Prasad Singh in support of the proposition that where the order passed by the court amounts to setting aside an award, appeal would lie against such an order. Section 16 of the Act is in the following terms:--

'16. Power to remit award.--(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 undermined 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.

2. Where an award is remitted under Sub-section (1) the court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court;

Provided that any time so fixed may be extended by subsequent order of the Court.

(3) An award remitted under Sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed.'

It is clear from a plain reading of the section that the Court may, in its discretion, remit the award to the Arbitration for reconsideration under any of the grounds mentioned in Clauses (a), (b) and (c) of Sub-section (1) of Section 16.

4. All cases of remittance under Section 16 of the Act may not involve setting aside of the award in its entirety or even in part. Where the court shall set aside the award either in whole Or in part the same becomes appealable under Section 39(1)(vi) of the Act. The decision reported in AIR 1978 Orissa 149 was a case where the appeal was against the decision of the learned Sub-Judge refusing to remit the award made by the Arbitrator. Thus, the facts of that case are distinguishable and cannot be applied to this case. I, therefore, conclude that this appeal is maintainable under Section 39(1)(vi) of the Act.

5. The learned court below proceeded to dispose of the matter on the basis that the award in question is a reasoned award and the reasoning furnished by the Arbitrator for his conclusion is untenable. I have gone through the copy of the award which was filed by the appellant in this Court. In claim item No. 5 a sum of Rs. 2,25,63.00 was claimed representing his dues for the work done by him for a length of 16100 ft. The arbitrator finds that the full measurement was not taken while calculating the dues of the claimant-appellant and the claimant is justified in claiming the same. The arbitrator further observes that the actual measurement at the spot is not possible after long lapse of time and he estimates the dues of the appellant at Rs. 1,10,000/-. There is nothing wrong on the part of the arbitrator to reach at the figure after hearing the parties and making an estimation of the dues of the claimant when actual measurement is not possible to be taken. The award is thus a non-reasoned award and there is no error apparent on the face of it, justifying interference by the Court. It is well settled in law by series of decisions of the Supreme Court that the arbitrator is entitled to pass a lump sum award without assigning any reason whatsoever. The arbitrator is not bound to give reasons in support of his award.

6. In the result I, therefore, hold that the order directing remittance of the award to the arbitrator is bad in law and is hereby set aside. The award passed by the arbitrator shall be made a rule of the court. The appeal is, therefore, allowed. But there would be no order as to cost.


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