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Andhra Pradesh High Court
Judges : P.RAMACHANDRA RAJU, PUNNAIAH
Government of A.P. - Appellant
Versus
Bactchala Balaiah - Respondent
Decided On : 06-25-84
ARBITRATION - AWARD - SETTING ASIDE - LIMITATION - CONDONATION OF DELAY - PRINCIPLES OF O. 9, R. 13, C. P. C. - APPLICABILITY - DECREE PASSED UNDER S. 17, ARBITRATION ACT - WHETHER AN EX PARTE DECREE - PROVISIONS OF O. 9, R. 13, C. P. C. - WHETHER APPLICABLE.
Fact of the Case:
The plaintiff, a contractor, entered into an agreement with the State of Andhra Pradesh to do earth work over the embankment of Godavari South canal. Disputes arose between the parties regarding the payment of the amounts for the work done by him. Both parties appointed arbitrators to resolve the dispute. After due enquiry, the arbitrators passed an award in favour of the contractor-plaintiff. The Government did not pay the amount as per the award and hence the contractor filed a suit in the Subordinate Judge's Court, Ongole, to make the award a rule of Court. The Government did not file any petition to set aside the award in the Court under S. 30, Arbitration Act. The suit was decreed in the terms of the award. The Government filed an application for setting aside the ex parte decree passed in the suit under O. 9, R. 13, C. P. C., along with a petition for condonation of delay of 9 days in presenting the application. The Subordinate Judge dismissed the petition for condonation of delay and consequently dismissed the application for setting aside the ex parte decree. The Government filed a revision petition and a civil miscellaneous appeal against the orders of the Subordinate Judge.
Finding of the Court:
The Court held that the provisions of O. 9, R. 13, C. P. C. are not applicable to the proceedings for setting aside an ex parte decree passed under S. 17, Arbitration Act. The Court further held that the decree passed under S. 17, Arbitration Act, is not an ex parte decree and hence the provisions of O. 9, R. 13, C. P. C. cannot be invoked for setting aside such a decree.
Issues: 1. Whether the provisions of O. 9, R. 13, C. P. C. are applicable to the proceedings for setting aside an ex parte decree passed under S. 17, Arbitration Act? 2. Whether the decree passed under S. 17, Arbitration Act, is an ex parte decree?
Ratio Decidendi: 1. The Court held that the provisions of O. 9, R. 13, C. P. C. are not applicable to the proceedings for setting aside an ex parte decree passed under S. 17, Arbitration Act, because: * The principles for the application of the provisions of O. 9, R. 13 are (1) non-service of summons that disabled the defendant and (2) sufficient cause that prevented the defendant from appearing in the Court when the suit was called on for hearing. * If those principles are satisfied then the Court is bound to apply the provisions of O. 9, R. 13 for setting aside the ex parte decree. * The same principles namely the non-service of notice of the filing of the award in the Court will be applicable for setting aside the decree passed under S. 17 of the Act. * It is therefore, clear that the Court can set aside the decree passed under S. 17 on the ground of non-service of notice of the filing of the award in the Court or on the ground that the decree was passed before the expiry of the time allowed by Art. 119 (b) for setting aside the award and this the Court can do in exercise of its revisional jurisdiction invoking the inherent powers conferred by S. 151. C. P. C though the provision of O. 9. R. 13 cannot he invoked for setting aside such a decree. 2. The Court held that the decree passed under S. 17, Arbitration Act, is not an ex parte decree because: * In a suit, which was filed for making the award a rule of the Court, neither party to the award is plaintiff or defendant and both parties are entitled to ask the Court to pronounce judgment according to the award. * Under S. 17 of the Act judgment must be pronounced and a decree must follow if the conditions of Ss. 14 and 17 are complied with. * Such a decree even if pronounced in the absence of the parties cannot be said to be passed ex parte.
Final Decision: The revision petition and the civil miscellaneous appeal were dismissed.
( 1 ) THE Revision and the C. M. A. arise out of the proceedings of Original Suit No. 124 of 1982. The brief facts leading to the revision and the C. M. A. areas follows: The plaintiff in the suit was a contractor. He entered into an agreement with defendants 1 and 2 who represent the State of Andhra Pradesh to do earth work over the embankment of Godavari South canal beyond lower Manair Dam. His tender was accepted and he completed the work as per the agreement. However, disputes arose between him and the defendants regarding the payment of the amounts for the work done by him. Both parties appointed defendants 3 to 5 as arbitrators to resolve the dispute. After due enquiry, defendants 3 to 5 passed an award on 15-8-1982 in favour of the contractor-plaintiff. Copies of the award were communicated to defendants 1 and 2. But the Government did not pay the amount as per the award and hence the contractor filed the suit in the Subordinate Judge s Court, Ongole, to make the award a rule of Court. Defendants 1 and 2 did not file any petition to set aside the award in the Court under S. 30, Arbitration Act. R. P. Notices were taken on the defendants 1 to 5 on 29-10-1982. Notices were served personally on defendants 1 to 5. The Government Pleader filed his memo of appearance on 29-10-1982. The suit was adjourned to 27-11-1982 for written statement. From that day it was adjourned from time to time for written statement till 27-1-1983. Though several adjournments were granted in between 27-11-1982 and 27-1-1983, written statement was not filed by the defendants. On 27-1-1983 the Government Pleader requested the Court for further time for filing written statement. But the learned Subordinate Judge refused to grant further adjournment and set the defendants ex parte. The suit was adjourned to 28-1-1983 for the plaintiffs evidence. On 28-1-1983 the plaintiff gave evidence as P. W. 1 and the award was marked as Ex. A-I. The learned Subordinate Judge on the basis of the evidence of P. W. 1 and Ex. A-I decreed the suit in the terms of the award. No petition was filed for setting aside the award under S. 30, Arbitration Act. Hence the learned Subordinate Judge decreed the suit in terms of the award with costs as prayed for making the award the rule of the Court. The learned Subordinate Judge also passed orders stating that there shall be no order for the payment of subsequent interest.
( 2 ) DEFENDANTS 1 and 2 in the suit filed I. A. No. 539 of 1983 under O. 9, R. 13. C. P. C. , for setting aside the ex parte decree passed in O. S. No. 214 of 1982 with a petition, I. A. No. 538 of 1983 for condonation of delay of 9 days in presenting I. A. 539 of 1983. As to why the delay in filing I. A. No. 539 of 1983 was caused, the petitioners in I. A. No. 538 of 1983 explained that they were informed of the ex parte decree dated 28-1-1983 by the Government Pleader, Ongole, as per his letter dated 31-1-1983 and hence they could not get instructions from the Government of Andhra Pradesh even up to 28-2-1983 and they could not file the petition I. A. No. 539 of 1983 under O. 9. R. 13. C. P. C, within the prescribed time of 30 days and left with no other remedy they filed the petition I. A. No. 538 of 1983 under S. 5, Limitation Act, seeking for the condonation of delay, which according to them, was due to purely administrative reasons. This petition was opposed by the plaintiff.
( 3 ) THE plaintiff contends that the Government Pleader was aware of the proceedings in the suit. O. S. No. 214 of 1982 and he took several adjournments for filing written statement ever since 27-11-1982 till 28-1-1983 when finally the suit was decreed in the absence of the defendants. He also contends that the Government can have no better privilege than any other party and they did not explain every day s delay for these 9 days, and their contention that they could not file the petition in time for want of instructions from the Government does not constitute a suffic
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