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1968 Supreme(Gau) 35
GAUHATI HIGH COURT
S.K.Dutta, P.K.Goswami, JJ.
Ashoka Construction Co. -Appellant
Versus
Union of India -Respondent
Civil Revn.No. 26 of 1968, D/- 13-5-1969, from order of Addl.Deputy Commr.Shillong,
Decided On : 27-03-1968
G.K.Talukdar, D.K.De, B.K.Das
An objection petition can be treated as an application under Section 33 of the Arbitration Act, 1940, even if it is not in a particular form, provided that it is filed within the period of limitation and substantially complies with the terms of Section 33.
Headnote:
ARBITRATION - SETTING ASIDE AWARD - APPLICATION UNDER SECTION 33 OF THE ARBITRATION ACT, 1940 - FORM OF APPLICATION - WHETHER ANY PARTICULAR FORM IS PRESCRIBED - WHETHER AN OBJECTION PETITION CAN BE TREATED AS AN APPLICATION UNDER SECTION 33 - LIMITATION - ARTICLE 158 OF THE LIMITATION ACT, 1908 - WHETHER AN OBJECTION PETITION FILED AFTER THE PERIOD OF LIMITATION CAN BE TREATED AS AN APPLICATION TO SET ASIDE THE AWARD.
Fact of the Case:
The petitioner, a contractor, entered into a contract with the Union of India for the construction of buildings of the Assam Rifles. Disputes arose between the parties, and the contractor filed an application for the appointment of an arbitrator under Sections 8, 20, 31, and 41 of the Arbitration Act, 1940. The Assistant to the Deputy Commissioner appointed an arbitrator, but the contractor objected to the appointment and filed another application for the appointment of a different arbitrator under Sections 8 and 20 of the Act. The Assistant to the Deputy Commissioner allowed the petition and appointed a new arbitrator. The Government filed a revision petition before the High Court, which dismissed the petition. The Government then preferred an appeal before the Supreme Court, which also dismissed the appeal. The arbitrator filed his award in Court, and the Government filed a petition for setting aside the award under Section 17 of the Act. The Assistant to the Deputy Commissioner dismissed the petition and made the award a rule of the Court. The Government filed an appeal before the Additional Deputy Commissioner, who allowed the appeal and set aside the award. The contractor filed a revision petition before the High Court.
Finding of the Court:
The High Court held that the objection petition filed by the Government could be treated as an application under Section 33 of the Arbitration Act, 1940, even though it was not in a particular form. The Court also held that the appellate court was not barred by res judicata from entering into the question of whether the arbitrator exceeded his jurisdiction by entertaining some new claims, as the award was liable to be set aside on the ground of violation of a principle of natural justice.
Issues: 1. Whether an objection petition can be treated as an application under Section 33 of the Arbitration Act, 1940, even if it is not in a particular form? 2. Whether an appellate court is barred by res judicata from entering into the question of whether the arbitrator exceeded his jurisdiction by entertaining some new claims, if the award is liable to be set aside on the ground of violation of a principle of natural justice?
Ratio Decidendi: 1. There is no special form prescribed for an application under Section 33 of the Arbitration Act, 1940. The Court can treat an objection petition as an application under Section 33 if it is filed within the period of limitation and if it substantially complies with the terms of Section 33. 2. Res judicata does not bar an appellate court from entering into the question of whether the arbitrator exceeded his jurisdiction by entertaining some new claims, if the award is liable to be set aside on the ground of violation of a principle of natural justice.
Final Decision: The revision petition was dismissed.
This petition has been filed against the order of the Additional Deputy Commissioner, United Khasi & Jaintia Hills District, setting aside an award. The petitioner entered into a contract with the Union of India (hereinafter called the Government) for the construction of buildings of the Assam Rifles at Tezu in the N. E. F. A. The contract contained a clause being clause No. 25 for settlement of disputes arising out of the contract by arbitration. The works were completed on 18-10-57 but disputes in respect of certain items arose and could not be settled. The petitioner (hereinafter called the contractor) took final payment on 18-10-57 under protest and without prejudice to his claims. Thereafter on 29-10-60 the contractor requested the Government for appointment of a sole arbitrator as the disputes had arisen between the parties as aforesaid. The Superintending Engineer as per agreement appointed one Shri N.M. Malkani as arbitrator on 1-1-62. The contractor objected to this appointment and prayed for the appointment of one Shri Nath as arbitrator by an application purported to be under Sections 8, 20, 31 and 41 of the Arbitration Act 1940 (hereinafter called the Act) filed before the Assistant to the Deputy Commissioner at Shillong who held that the appointment of Shri Malkani was valid. Shri Malkani, however, died before he could act as arbitrator and in his place one Shri P. S. Rao was appointed as arbitrator.
The contractor again objected to the appointment of Sri Rao and filed an application purported to be under Sections 8 and 20 of the Act praying for appointment of another person as arbitrator. The Government resisted the petition. The learned Assistant to the Deputy Commissioner however, allowed the petition after hearing both the parties and appointed Shri G. N. Dutta. as arbitrator by an order dated 29-4-65. The Government then filed a revision petition before this Court against the order of the Assistant to the Deputy Commissioner. This Court dismissed that petition. The Government then preferred an appeal before the Supreme Court and this appeal was also dismissed. The arbitrator Shri G. N. Dutta filed his award in Court on 21-1-66 and the Government filed a petition on 17-2-66 for setting aside the award. The learned Assistant to the Deputy Commissioner after hearing both the parties dismissed the said objection petition on 27-4-67 and made the award a rule of the Court and ordered drawing up of a decree in terms of the same. Thereafter the Government filed an appeal before the Additional Deputy Commissioner and the contractor also filed a cross-appeal. The contractor, however, did not press his appeal and it was dismissed. The Additional Deputy Commissioner allowed the appeal of the Government and set aside the award. The contractor has filed this petition against the order of the Additional Deputy Commissioner.
2. This petition is said to be under Rule 36 of the Rules for the Administration of Justice and Police in the Khasi & Jaintia Hills District and also under Sections 115 and 151 of the Civil Procedure applies to the present proceedings. Under section 41 of the Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court and all appeals under the Act. In the present case the original order was passed by a Munsiff in his capacity as Assistant to the Deputy Commissioner in Shillong. There was an appeal to the Additional Deputy Commissioner whose position is analogous to that of a District Judge. Sub-section (2) of Section 39 of the Act bars a second appeal against an appellate order passed under the said section. The appeal before the Additional Deputy Commissioner was filed under Section 39 (1) (vi) of the Act for setting aside the award. Hence this petition must be treated only as a revision petition under Section 115 of the Civil Procedure Code. The High Court has no power to interfere under this section except in three cases viz. where the s
