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Executive Engineer and ors. Vs. Yoginder SarIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 1176 of 2000
Judge
Reported in(2000)126PLR813
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20
AppellantExecutive Engineer and ors.
RespondentYoginder SarIn and anr.
Appellant Advocate M.S. Guglani, Adv.
Respondent Advocate B.R. Mahajan, Adv.
Cases ReferredGujarat Water Supply & Sewerage Board v. Unique Erectors
Excerpt:
.....authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - it was further alleged in the objections that arbitrator had failed to give reasons while allowing the claims of yoginder sarin and declining the claims of objectors. he found that it was well within the jurisdiction of the arbitrator to grant interest even for the period prior to the commencement of arbitration proceedings after the commencement of interest act, 1978. it was found that objections were within limitation. 115 of 1998). 6. still not satisfied, union of india has come up in civil revision no. acquisition..........arbitration act, 1940 against the union of india and others in the court of civil judge, senior division, amritsar whereby he prayed that shri s.s juneja, arbitrator (se), ministry of urban development, govt. of india be directed to file award. he prayed that the said award be made rule of the court. shri s.s juneja, arbitrator/se, ministry of urban development, govt. of india filed award dated 23.7.96 in that court. notice was served upon union of india. objections were filed by executive engineer, bikaner central division, cpwd c-2 sadul ganj, bikaner and superintending engineer, jaipur central circle, cpwd, jaipur petitioners herein (respondents no. 2 and 3 before the trial court) under section 30 of the arbitration act against the award being made rule of the court. it was alleged.....
Judgment:

M.L. Singhal, J.

1. By means of the order, I would dispose of Civil Revision No. 1176, 1177 and 1178 of 2000 as the same question of law and fact is involved in these revisions.

2. Facts are being taken out of Arbitration Case No. 33 of 6.8.96, which gave rise to Civil Revision No. 1176 of 2000.

3. Yoginder Sarin filed a petition under Section 14(2) read with Section 17 of the Arbitration Act, 1940 against the Union of India and others in the Court of Civil Judge, Senior Division, Amritsar whereby he prayed that Shri S.S Juneja, Arbitrator (SE), Ministry of Urban Development, Govt. of India be directed to file award. He prayed that the said award be made rule of the Court. Shri S.S Juneja, Arbitrator/SE, Ministry of Urban Development, Govt. of India filed award dated 23.7.96 in that Court. Notice was served upon Union of India. Objections were filed by Executive Engineer, Bikaner Central Division, CPWD C-2 Sadul Ganj, Bikaner and Superintending Engineer, Jaipur Central Circle, CPWD, Jaipur petitioners herein (respondents No. 2 and 3 before the trial Court) under Section 30 of the Arbitration Act against the award being made rule of the Court. It was alleged that Civil Judge, Senior Division, Amritsar has no territorial jurisdiction to entertain and try the present petition because the contracting party Executive Engineer, Bikaner Central Division, CPWD has its office in Sri Ganga Nagar (Rajasthan) where tender was submitted and accepted and acceptance was conveyed to the petitioner (respondent herein). Contract was executed/concluded at Sri Ganga Nagar. Neither arbitration was held at Amritsar nor award was given at Amritsar. It was further alleged in the objections that arbitrator had failed to give reasons while allowing the claims of Yoginder Sarin and declining the claims of objectors. Award was given without application of mind. Award was given beyond the statutory period of four months. Continuity of extension of time for each lap of four months is missing. While awarding claim No. 5, arbitrator showed undue favour to the claimant. In some other cases, Arbitrator has held that nomenclature of agreement item and drawing attached with the agreement form a part of agreement and the claimant was required to provide struts on both sides and there was no extra struts. The arbitrator has taken contradictory stand and allowed the payment of final bill with claim for so called extra struts. It is stated that this claim was an after thought without any documentary evidence/reasons. It was also stated that interest has been awarded illegally. It was prayed that award dated 23.7.96 be set aside. Yoginder Sarin (contractor) put in reply to these objections. It was submitted that objections were not within time. Court at Amritsar has territorial jurisdiction to entertain and decide the present petition. The acceptance of the tender was conveyed to the petitioner at Amritsar as he is having his office at Amritsar. Intimation regarding contract-agreement was also given to the petitioner at Amritsar. Arbitrator after making and signing of the award sent intimation to the petitioner at Amritsar. It was denied that no part of cause of action arose to the petitioner at Amritsar. Arbitrator gave award after hearing both the parties and appreciating both documentary and oral evidence produced by them. Objections raised by the objectors touch the merits of the case. The Court cannot reappraise the evidence brought on record by the parties before Arbitrator. It was denied that arbitrator made the award after the expiry of statutory period of four months. The award was made within the extended period of limitation.

4. On the pleadings of the parties, the following issues were framed:-

1. Whether the award dated 23.7.96 is liable to be set aside on the ground mentioned in the objection petition?OPO

2. Whether the objections have not been filed within limitation? OPR

3. Whether the objection petition is not filed by duly authorised and competent person as alleged? OPR

4. Relief.

5. Civil Judge, Senior Division, Amritsar declined these objections and ordered the award to be made rule of the Court. He found that petition could be filed at Amritsar seeking the filing of the award for being made rule of the court and the Court at Amritsar had jurisdiction to try and decide this petition. It was found that time was extended by the parties mutually under their own signatures and the parties extended the hearings before the arbitrator and ultimately time was extended by the parties on 4.4.96 to 4.8.96. The award was given on 22.7.96 i.e. within limitation. It was found that the Court cannot reappreciate the evidence produced by the parties before the arbitrator for the purpose of recording a finding whether in the facts and circumstances of a particular case, the award could not have been made. He found that it was well within the jurisdiction of the arbitrator to grant interest even for the period prior to the commencement of arbitration proceedings after the commencement of Interest Act, 1978. It was found that objections were within limitation. It was found that objections had been filed by Executive Engineer, Bikaner Central Division, CPWD on behalf of the Union of India. Against this order dated 4.5.98 passed by Civil Judge, Senior Division, Amritsar. Executive Engineer, Bikaner Central Division, CPWD C-12, Sadul Ganj, Bikaner went in appeal before the Additional District Judge, Amritsar. It was arbitration Case No. 33 of 6.8.96 before Civil Judge, Senior Division, Amritsar. Additional District Judge dismissed this appeal vide order dated 16.12.99 (Civil Misc. Appeal No. 115 of 1998).

6. Still not satisfied, Union of India has come up in Civil Revision No. 1176 of 2000 against the order of Addl.Distt.Judge, Amritsar dated 16.12.99 affirming that of Civil Judge, Senior Division, Amritsar dated 4.5.98.

7. I have heard both the sides and have gone through the record.

8. It was submitted by the learned counsel for the petitioner Executive Engineer, Bikaner Central Division, CPWD and others that Civil Court at Amritsar had no jurisdiction to call upon the arbitrator to file award. It had no jurisdiction to make the award rule of the Court. It was submitted that Civil Court at Amritsar had no territorial jurisdiction so far as the subject matter of arbitration before the arbitrator was concerned. It was submitted that Civil Court of that place would have jurisdiction where the agreement was signed/accepted and where the work was executed. In this case, neither the agreement was signed/accepted at Amritsar nor the work was executed at Amritsar. Amritsar Court shall have no jurisdiction. It was submitted that simply because the acceptance of the tender was conveyed to Yoginder Sarin at Amritsar and he is residing at Amritsar, Amritsar Court shall not derive any jurisdiction. It was submitted that in a contract, which was entered into by the Union of India/Executive Engineer, Bikaner Central Division, CPWD C-12, Sadul Ganj, Bikaner with Yoginder Sarin, at Ganga Nagar, the place where the communication of the acceptance of the tender was made is no part of cause of action. It was submitted that only Court were contract is signed or the work is executed will have jurisdiction to entertain this application. It was submitted that this Executive Engineer has its office at Sri Ganga Nagar where the tender was submitted by Yoginder Sarin to him. Contract-agreement was executed/concluded at Sri Ganga Nagar (Rajasthan) and as such Amritsar Court had no jurisdiction to entertain this application. In support of this submission that Amritsar Court had no territorial jurisdiction to entertain this application, he drew my attention to Union of India v. Harbans Singh Tuli & Sons and Anr., (1995-3)111 P.L.R. 144 where it was held that 'communication of acceptance is not an integral part of completion of contract so as to constitute part of cause of action. Where tender was accepted at Lucknow for the work to be executed at Pithoragarh, order of cancellation was passed at Lucknow. Order of appointment of arbitrator was not passed within jurisdiction of court at Chandigarh and arbitrator did not hold any proceedings in Chandigarh. Litigation between the parties for revocation of authority of arbitrator was pending at Pithoragarh. Merely because formal acceptance was received at Chandigarh or some cheques were received at Chandigarh would not constitute the facts forming the integral part of cause of action. Chandigarh Court has no power to extend time.' He drew my attention to Union of India v. M/s Ajit Mehta and Associates, Pune and Ors., AIR 1990 Bombay 45 where it was held that 'Pune Court did not have jurisdiction to entertain contractors application for appointment of arbitrator when the contract related to the construction of building outside Maharashtra State. Mere receipt of a letter by the contractor in Pune in Maharashtra State communicating to him the acceptance of tender shall not confer jurisdiction on Pune Court to entertain contractor's application for appointment of arbitrator.' He also drew my attention to State of Rajasthan and Ors. v. M/s Swaika Properties and Anr., (1985) 3 S.C.C. 217 where it was held that 'transaction must be integral part of the cause of action sufficient to invest the High Court with jurisdiction to entertain the petition. Acquisition proceedings had been initiated by Rajasthan State Government in respect of land situate in Jaipur of a Calcutta based company by serving notice on it at its registered office in Calcutta. Company's representative appearing before the concerned authority in Jaipur. Acquisition of the land recommended by the authority to the State Government. Notification vesting the land in the State Government was issued. Writ petition was filed by the company in Calcutta High Court regarding acquisition of that land.' It was held that ' the cause of action neither wholly nor in part arose within the territorial limits of the Calcutta High Court. The mere service of notice under Section 52 (2) of the Rajasthan Urban Improvement Act, 1959 on the respondents at their registered office within the territorial limits of the State of West Bengal, could not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52 (1) arose within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench.' In M/s Elder Telecom Limited v. Union of India and Ors., 1993 (1) C.L.J. (C, Cr. & Rev.) 762 it was held by a Division Bench of this Court that 'where no part of cause of action has accrued within the territorial jurisdiction by a particular court, that Court would not have jurisdiction.' In M/s Elder Telecom Limited's case (supra), the Department of Telecom Communication, New Delhi had invited tender proposals for the grant of Franchise Licences for providing Radio Paging services for 27 selected cities of India, proposals were invited from Indian Companies. M/s Elder Telecom Limited was to collaborate with the foreign Company. Full details of the terms and conditions of the tender are not required to be given. Suffice it to say that everything with the grant of the tender was to be done at Delhi except that Chandigarh was one of the 27 towns for which radio paging service was required to be provided. Department of Telecommunications, 20 Ashok Road, New Delhi was the office of issue. The forms of submitting tenders were available from Section Officer (MMC), Room No. 1222, Sancher Bhawan, New Delhi.' It was held that High Court at Chandigarh shall have no jurisdiction where no part of the cause of action has arisen. In Daya Shanker Bhardwaj v. Chief of the Air Staff, New Delhi and Ors., AIR 1958 Allahabad 36 it was held by a Division Bench of Allahabad High Court that 'a right of action is the right to enforce a cause of action. A person residing any where in the country being aggrieved by an order of Government Central or state or authority or person may have a right of action at law but it can be enforced or the jurisdiction under article 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the Government or authority and not by residence of the person aggrieved.'

9. Learned counsel for respondent-Yoginder Sarin, on the other hand, submitted that Amritsar Court had jurisdiction to entertain this application for award being made rule of the Court. In support of this submission, he drew my attention to Union of India and Ors. v. M/s Shibboo Mal and sons Chandigarh and Anr., (1989-1)95 P.L.R. 264, where it was held that 'where acceptance of agreement was conveyed to the contractor at C, part of cause of action arises at C, Court at C has jurisdiction to entertain the petition under Section 14 and 17 of the Arbitration Act.'

10. In this case, part of cause of action shall be deemed to have arisen in view of clause C, of Section 20 of the Code of Civil Procedure within the territorial jurisdiction of Amritsar Court because acceptance of the tender submitted by the respondent was communicated to him at Amritsar and some payments were made to him at Amritsar and also because Branch Office of Bikaner Central Circle CPWD is also located at Amritsar. That Court will have jurisdiction where even fraction of cause of action has arisen. Clause C of Section 20 CPC is based on broad principle so as .to avoid inconvenience to the parties. Arbitrator could award interest even for the period prior to commencement of arbitration proceedings in view of the observations of the Hon'ble Supreme Court in Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. and Ors., AIR 1989 S.C. 973.

11. It was submitted by the learned counsel for the petitioner that the award is bad in law as no extension of time had been taken by the Arbitrator from time to time for delivering the award. Suffice it to say, parties gave extension of time to the arbitrator from time to time. Last extension was given by them on 4.4.96 upto 4.8.96,

12. Arbitrator gave this award after appreciating the evidence both documentary and oral led by the parties. Court cannot re-appraise the evidence brought on record before the arbitrator. It was submitted that the arbitrator in allowing claim No. 5 of the contractor ignored without reference to the term of the contract. It was submitted that arbitrator with a view to cause unlawful enrichment to petitioner/contractor not only ignored the nomenclature and sketches appended to the agreement, which formed part of agreement without any reason whatsoever. Objectors placed on record Ex. D3, which is an award dated 17.5.96 between M/s Mana Ram Ganpat Ram & Ors Union of India by the same arbitrator Shri S.S. Juneja involving the same agreement as in the present case for the similar work of border fencing as in the present case, while deciding claim No. 5 in Ex. D3, arbitrator held that sketch attached with the agreement where the arbitrator holds 'I found that the sketch attached with the Agreement shows provisions of 1 bolt only.' Whereas in the present award dated 22.7.96 on page 5 while deciding claim No. 5 in para 2nd in 4th and 5th line, arbitrator ignored the drawing altogether and holds 'In the circumstances, I have to go by the normal definition of 'strut' which means additional member provided on one side only.' It was submitted that this departure from the earlier established view of the arbitrator shows his malafides and his partiality towards the petitioner/contractor and in this manner, the arbitrator misconducted himself.

13. In my opinion, the award requires re-consideration by the arbitrator so far as the award of claim No. 5 by him to the contractor is concerned.

14. In view of what I have said above, I hold that Amritsar Court has jurisdiction to entertain this application and make award the rule of the Court. Order passed by Civil Judge, Senior Division, Amritsar ordering the award to be made rule of the court is upheld but not in entirety. In other respects, the award shall hold good except with regard to claim No. 5 made by contractor Yoginder Sarin before the Arbitrator. In regard to claim No. 5, the award is remitted to the arbitrator for re-consideration in the light of the objections raised by the Union of India to this item of claim. Similar order is deemed to have been passed in CRs No. 1177 and 1178 of 2000.


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