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High Court Of Calcutta
S. K. SEN
UNION OF INDIA - Appellant
Versus
JAIN AND ASSOCIATES - Respondent
G. A. 1969 Of 1997
Decided On : 09/25/1998
ARBITRATION - Setting aside of decree passed in terms of award - Ex parte decree - Applicability of Order 9 Rule 13 of the Code of Civil Procedure - Interpretation of section 17 of the Arbitration Act, 1940 - Scope of inherent power of the court to set aside decree - Relevant considerations.
Fact of the Case:
The petitioner, Union of India, sought to recall and/or set aside a judgment and decree passed by the court in an award case, alleging that the decree was passed after the expiry of the time fixed under the statute to make an application for setting aside the award after service of notice under section 14(2) of the Arbitration Act.
Finding of the Court:
The court held that the provisions of Order 9 Rule 13 of the Code of Civil Procedure do not apply to a proceeding for setting aside an ex parte decree passed under section 17 of the Arbitration Act. The court noted that section 17 makes it mandatory for the court to pass a judgment and decree in terms of the award in certain circumstances, and that such a decree cannot be considered an ex parte decree even if passed in the absence of parties.
Issues: 1. Whether the provisions of Order 9 Rule 13 of the Code of Civil Procedure apply to a proceeding for setting aside an ex parte decree passed under section 17 of the Arbitration Act? 2. Whether the court has inherent power to set aside a decree passed under section 17 of the Arbitration Act? 3. If so, in what circumstances can the court exercise its inherent power to set aside such a decree?
Ratio Decidendi: 1. The court held that the provisions of Order 9 Rule 13 of the Code of Civil Procedure do not apply to a proceeding for setting aside an ex parte decree passed under section 17 of the Arbitration Act. The court reasoned that section 17 makes it mandatory for the court to pass a judgment and decree in terms of the award in certain circumstances, and that such a decree cannot be considered an ex parte decree even if passed in the absence of parties. 2. The court held that the court has inherent power to set aside a decree passed under section 17 of the Arbitration Act. However, the court noted that this power can only be exercised in cases where the decree has been passed irregularly, such as where no notice was served under section 14(2) of the Arbitration Act, or where the decree was passed before the time to make an application for setting aside the award had expired, or where an application for setting aside the award had been made but was dismissed. 3. The court held that the following circumstances may justify the court exercising its inherent power to set aside a decree passed under section 17 of the Arbitration Act: a. Where no notice has been served under section 14(2) of the Arbitration Act, or b. Where the decree has been passed before the time to make an application for setting aside the award has expired, or c. Where an application for setting aside the award has been made but was dismissed.
Final Decision: The court dismissed the petitioner's application to recall and/or set aside the judgment and decree passed by the court in the award case.
( 1 ) THE Court : This is an application for recalling and/or setting aside the judgment and decree passed by this court on 28th April, 1997 in Award case No. 22 of 1997. The said decree was passed after the expiry of time fixed under the statute to make an application for setting aside the award after service of notice under section 14 (2) of the Arbitration Act dated 18. 3. 97. The petitioner also prayed that leave be given to the petitioner to file the application for setting aside the award.
( 2 ) IT is not in dispute that notice under section 14 of the Arbitration Act was duly served upon the petitioner on 21. 3. 97. The time for filing the application for setting aside the award under sections 30 and 33 of the Arbitration Act expired on 21. 4. 97.
( 3 ) IT is also not in dispute that no application was make by the petitioner within the said statutory period. The matter appeared for judgment upon award before me on 21. 4. 97. The matter was called on in the presence of both the advocates of the parties. After hearing the submissions, this decree was passed in terms of the award on 20th April, 1997, after taking note of the fact that the petitioner has failed to make any application for setting aside the award on or before 21. 4. 97.
( 4 ) IT has been alleged in the petition that on 28. 4. 97 the instant Award case No. 22 of 1997 appeared in the pre-emptory list under the heading 'judgment upon award'. It has further been alleged that when the said matter was called on, the counsel for Union of India submitted before me that since the application for setting aside the award was going to be filed, the court should adjourn passing the judgment upon award till the application for setting aside the award was filed.
( 5 ) HOWEVER, the prayer of the learned counsel was not granted and decree was passed in terms of the award.
( 6 ) IT appears from the list of dates filed on behalf of the Union of India that on 2nd May, 1997 application for setting aside the award was affirmed with a prayer for condonation of delay.
( 7 ) ON 5th May, 1997 the instant application for recalling the decree upon award was affirmed and filed in the Computer section.
( 8 ) IT has been submitted by Mr. Anindya Mitra, learned Additional Solicitor General, on behalf of Union of India that on April 28, 1997 when the decree was passed the learned Advocate for the petitioner, Union of India, appeared only for the purpose of making a prayer for adjournment and the same cannot be treated to be an appearance on behalf of Union of India since no submission was made by the learned Advocate for Union of India except praying for adjournment. It has further been submitted by Mr. Mitra that on 28. 4. 97 when the decree was passed, Union of India could not oppose passing of the decree, since the application for setting aside the award has not yer been made.
( 9 ) IN support of his contention he has relied upon the following decisions :- i) Satish Chandra Mukerjee v. Ahara Prasad Mukerjee reported in 34 ILR (Cal) 403 ii) Sohanlal Ruia and another v. Kedarnath Purushottamdas and Co. Private Ltd, and others reported in AIR 1969 Cal 516 ii) Baijnath Bothra and others v. Kedar Nath Bothra and others reported in AIR 1938 Cal 74
( 10 ) IT has further been submitted on behalf of Union of India that the question in the instant case is whether sufficient cause for not making an application for setting aside the award during the period from April 21, 1997 till May 2, 1997 when the application for setting aside the award was actually affirmed is shown. The application for recalling of the decree is within the period of limitation of 30 days.
( 11 ) IT has been argued on behalf of the Union of India that sufficient cause is to be liberally construed in the case of Government. Further submission of Mr. Mitra is that delay in the instant case in affirming application for setting aside the award is only 11 days. It is quite well known that the procedural delay i
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