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1998 Supreme(Bom) 43
IN THE HIGH COURT OF BOMBAY
(O.O.C.J.)
S.S. Nijjar, J.
Hindustan Construction Corporation ..... Petitioners.
Versus
Mazgaon Dock Ltd..... Respondents.
Arbitration Petition No. 265 of 1997 in Arbitration Award No. 117 of 1997, decided on 21-1-1998.
Advocates appeared :
Kamdar i/b Virsen L. Panjuani, for the petitioners.
Virag Tulzapurkar i/b Ms. Udwadia, Udeshi, Desai, Berjis Chine, for the respondents.
Headnote:Sections 30 and 33-Award challenged ground-Arbitrator, without giving any reason considered revised claim-Held-A non speaking award need not go in details of explaining reasons behind decision. Since the award made by the Arbitrator is a non-speaking award without any reasons it is not open to this Court to re-examine the issues. This proposition of law has been settled as noticed in the various reported cases of the Supreme Court. It cannot be said that the petitioner was in any manner handicapped, for want of rejoinder.
Sections 30 and 33-Award given considering counter claim- opportunity not given to file reply-Award passed without giving opportunity to reply amount to violation of natural justice-Held-As per Sections 30 and 33 an award can be rejected with specified facts and-Petitioners did not avail the opportunity to inspect the summary-Natural justice not violated.-Having examined this case anxiously this Court is of the opinion that no such error has been pointed out which would bring the facts of this case within the purview of any of the law laid down by the Supreme Court and this Court. In view of the above, Court found no merit in the petition. The same is hereby dismissed with no order as to costs.
Sections 30 and 33-Award of arbitration-Challenged for being partial-Also-inspection of document not allowed-Contention-Opportunity must be given to file rejoinder-Held-Once petition on similar grounds is already dismissed-No rejoinder allowed-All party are to be given in petition only.- There is no requirement for a rejoinder also to elucidate the point that the inspection of the documents had not been made by the petitioners before the award was announced. This is a matter of record. As for the plea that the award would be vitiated on account of non-observance of rules of natural justice, all the relevant facts as enumerated above already come of the record. As noticed above, it was the bounden duty of the petitioners to plead all the facts which were necessary for establishing their claim in the petition. The purpose of a rejoinder is not to fill in the gaps left by the petitioners in their pleadings, in the petition. In the reply the respondents have not raised any new issues. These issues were in facts before the Arbitrator and the petitioners were well aware of these issues. In the letter dated 11.1.97 the respondents had categorically stated that there are no new facts which have been pleaded by the respondents. The petitioners were well aware of it as the said letter has been attached to the petition. In view of the above, Court not found justification whatever in adjourning the matter to enable to file a rejoinder.
Sections 30 and 33-If an arbitrator can decide his own jurisdiction-Award challenged ground-Arbitrator has considered counter claim crossing jurisdiction-Held-Only Court can decide jurisdiction-Parties having no consent on jurisdiction-Petitioners not caused any prejudice.-Admittedly in the present case the question of law about jurisdiction was not referred to the Arbitrator by consent of both the parties. The petitioners had merely submitted draft issues. Although it is submitted by Mr. K that the said issues were accepted by the Arbitrator that the matter was argued before the Arbitrator and the respondents had dealt with the point in the reply, it cannot be held that the issue had been referred to the Arbitrator by consent of the parties.
2. The petitioners are M/s. Hindustan Construction Corporation, a registered partnership firm of Engineers and Contractors having their office at 53, Sindhi Society, C.S.T. Road, Chembur, Mumbai-400 071. The respondents are M/s. Mazgaon Dock Ltd., a Government of India Undertaking and having their office at Mazagaon Dock, Mumbai-400 010. Certain disputes had arisen between the petitioners and the respondents in respect of the work of construction of workshop shed at Nhava Yard for the respondents. Under the Arbitration Agreement between the parties, the said disputes were referred to the Arbitration of one Shri G.G. Archik as sole Arbitrator, pursuant to the order dated 12-2-1988 of this Court. This order was passed in Arbitration Suit No. 3416 of 1987 filed by the petitioners. Thereafter the petitioners had also filed Arbitration Petition No. 69 of 1991 under sections 11 and 12 of the Arbitration Act to remove Shri G.G. Archik and to appoint some other person as an Arbitrator in his place. This petition was rejected by order dated 9th December, 1994. Thereafter the arbitration proceedings restarted before the Arbitrator. The petitioners had suggested draft issues on various claims of the petitioners. These draft issues were filed on 7th August, 1995. Copy of these draft issues has been annexed to the petition as Exhibit-A. By letter dated 12th September, 1996 the Arbitrator fixed the date of hearing on 25th September, 1996. On 21st September, 1996 the petitioners in their letter to the Arbitrator, requested that the date of hearing be fixed on 25th October, 1996. The Arbitrator, however fixed 16th December, 1996 as the date of next hearing. In the meeting held on that day, respondents, according to the petitioners, had filed revised counter claim, copy of which has been annexed as Exhibit-C to the petition. According to the respondents, Exhibits-C is merely a summary of the counter claim which had been filed by the respondents on 26th April, 1988. A reply to this counter claim had been filed by the petitioners on 16th August, 1988. Relying on the averment that Exhibit-C was a revised counter claim, petitioners claimed that they were entitled to inspection of the documents. Thus by their letter dated 27th December, 1996 they sought inspection. On 23rd December, 1996 the respondents had written to the petitioners alleging that they were deliberately trying to delay the arbitration proceedings. In any event it was stated that they are prepared to give inspection. By their letter dated 27th December, 1996 the petitioners informed the Arbitrator that unless inspection is given, the hearing which was fixed for 28th December, 1996 would not serve any useful purpose. It was stated that the petitioners would not be in a position to reply to the counter claims of the respondents. It was stated that further hearing programme can be fixed in the matter after inspection of the documents has been given to the petitioners. By their letter dated 28th December, 1996 the respondents denied the allegations made by the petitioners. Inspite of this, the Arbitrator by his letter dated 30th December, 1996 informed the parties that he had decided not to hold any further hearing in the matter. The parties were directed to file their written submissions by 25th January, 1997. In response to this letter, the petitioners addressed a letter to the Arbitrator on 6th January 1997 clarifying the position and stating that the inspection had yet not been given on the documents. It was also stated that once inspection has been given the petitioners are desirous of making oral submission to the Arbitrator. In reply to this letter, the respondents on 11th January, 1997 submitted before the Arbitrator t
