1998 Supreme(Bom) 533

IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
M/s. Charkop Priya Co-op. Housing Society Ltd. ..... Petitioner.
Versus
M/s. Trade Well Constructions .... Respondents.
Arbitration Petition No. 259 of 1996, decided on 15-9-1998.
Advocates appeared :
K.H. Mody with Ms. Jayshree Nambiar i/b. Vinod Mistry Co., for the petitioners.
S.U. Kamdar, i/b. V.L. Panjwani with R.D. Dhanuka, for the respondents.

Headnote:Section 13-Extention of time in a contract-Absence of provision for price in extention of time-Grant of part of c1aim-Consideration of price rate by arbitrator-Not illegal.

       Sections 30 and 33-AwardSetting aside .of-Misconduct-counter claim-Rejection of without assigning reasons for-Held-In absence of provisions in contact for giving reasons for-No misconduct in setting aside award.-It was contended that the respondents was not a duly registered partnership firm and consequently no claim and/or dispute at their instance could have been decided by the arbitral tribunal. The question whether the respondents are registered partnership is a mixed question of fact and law. The said contention was not raised before the Arbitral Tribunal. It is sought to be explained that this was not done for the reason that if it was raised then the respondents would have got themselves registered. It is further pointed out that it is only after the petition was filed that the partnership is registered in the year 1996 serenity is no answer to a claim when the petitioners seek to set aside the award in favour of the respondents. The matter ought to have been in issue before the Arbitral Tribunal. The respondents ought to have been given an opportunity of leading evidence on the said point to satisfy the Tribunal that they in fact were registered the respondents could not have been taken by surprise. A point not raised before the Arbitral Tribunal cannot be permitted to be raised for the first time before this Court unless from the Award itself the error of law becomes apparent.

       In the instant case it is pointed out by the petitioners that in the reply filed by the respondents in they have themselves admitted that the firm was registered on 19th October 1996. A part from the fact that the petitioners cannot be permitted to raise the said contention for the first time nowhere from the averments can the construction sought to be given by the petitioners can be spelt out. On the contrary what is seen is that as per the entry dated 19th October 1996 the date of joining of the partners in the firm are with effect from 1st April 1986. It is further averred therein that the respondent firm had applied for registration and due to technical reasons there was delay in issuance of formal certificate.

       Section 33-Jurisdiction of Tribunal.-Where the items are not decided by the Engineer, the Tribunal has authority to decide them, but in those items where Engineers have already considered them, Tribunal has no jurisdiction to re appreciate them, are cheek the correctness of such decision of Engineers.

       Section 33-Jurisdiction of Tribunal.-Where the items are not decided by the Engineer, the Tribunal has authority to decide them, but in those items where Engineers have already considered them, Tribunal has no jurisdiction to re appreciate them, are cheek the correctness of such decision of Engineers.

       Section 33-Partnership Act 1932, Section 69-Intervention of Court in mixed questions.-Apart which is a mixed element of facts and law if not raised during proceedings before arbitrators cannot be allowed to be raised in petition and does not form an error an face of record. The question whether the respondents are registered partnership is a mixed question of facts and law. The said contention was not raised before the Arbitral Tribunal. It is sought to be explained that this was not done for the reason that if it was raised then the respondents would have got themselves registered. It is further pointed out that it is only after the petition was filed that the partnership is registered in the year 1996. Ingenuity is no answer to a claim when the petitioners seek to set aside the award in favour of the respondents. The matter ought to have been is issue before the Arbitral Tribunal the respondents ought to have been given an opportunity of leading evidence on the said point to satisfy the Tribunal that they in fact where registered. The respondents could not have been taken by surprise. A point not raised before the Arbirtral Tribunal cannot be permitted to be raised for the first time before this Court unless from the Award itself the error of law becomes apparent.

       Even otherwise Section 69 speaks about the filing of a suit in any Court. The present proceedings before the Arbitrator was not a suit nor was it filed before any Court. Hence the bar of Section 69 of the partnership Act would not apply even if it is assumed that on the relevant date the partnership was not registered. The Section must be read as a whole. If so read sub-section (3) cannot be read do hours sub-sections (1) and (2) of Section 69. The expression claim or set off can only be in the suit. In this context the other proceedings must be held to be proceedings arising before a Court. If so read it will refer to a Court as contemplated under sub-section (1) and (2) of Section 69 and as such reference to arbitration without intimation of the Court is not debarred.

       Section 33-Non giving of reasons-If misconduct.-Court has no authority to interfere in jurisdiction of Tribunal, when the matter is within jurisdiction of Tribunal, not giving the causes does not amount to misconduct.

       Sections 33 and 30-AwardSetting aside of-Plea-Respondent firm not registered at imitation of arbitrator proceedings-Not raised before Arbitration-Held-A new plea cannot be raised for first time before High Court.