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2018 Supreme(J&K) 30
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SANJEEV KUMAR, J.
Union of India and others – Appellants
Vs.
M/S Roman Tarmat Ltd. and another – Respondent
OW104 No.39 of 2018 MP No.1 of 2018
Decided on : 10-04-2018
Advocate Appeared:
For the Petitioner: Mrs. Sindhu Sharma, ASGI.
For the Respondent:Mr. R.K.Gupta, Sr. Advocate with Mr.Javed Iqbal, Advocate.
Headnote:
Section 104 - Power of Superintendence - Section 11 of Jammu & Kashmir Arbitration and Conciliation Act, 1997 - Section 34, Section 35, Section 36, Section 37 - The judgment discusses the invocation of the power of superintendence of the Court under Section 104 of the Constitution of Jammu & Kashmir to challenge the order passed by the trial Court. It also delves into the disputes arising from a contract, the appointment of a sole arbitrator, and the subsequent challenges and execution proceedings. The Court analyzes the questions regarding the appeal under Section 37 of the Act, the maintainability of execution proceedings, and the effect of pendency of appeal on the executability of the award. The judgment provides a detailed interpretation of relevant provisions of the Act and refers to the Supreme Court and High Court judgments to support its findings.
Fact of the Case:
The petitioners invoked the power of superintendence of the Court to challenge the order passed by the trial Court, which rejected their applications seeking dismissal of the execution petition and modification of an earlier order. The disputes arose from a contract, leading to the appointment of a sole arbitrator and subsequent challenges and execution proceedings.
Finding of the Court:
The Court found that the appeal under Section 37 of the Act does not automatically stay the execution of the award. It also held that the trial Court had jurisdiction to entertain the execution proceedings, and the respondent could seek execution of the award despite challenging a part of it under Section 34 of the Act.
Issues: The issues revolved around the invocation of the power of superintendence, the maintainability of execution proceedings, the effect of pendency of appeal on the executability of the award, and the jurisdiction of the trial Court.
Ratio Decidendi: The Court's analysis and conclusion were based on the interpretation of relevant provisions of the Act, including Section 2(1)(e), Section 34, Section 35, Section 36, and Section 37. It also relied on the judgments of the Supreme Court and the High Court to support its findings.
Final Decision: The petition was dismissed, affirming the trial Court's order and finding no infirmity necessitating the exercise of power of superintendence in terms of Section 104 of the Constitution of Jammu & Kashmir.
1. The power of superintendence of this Court vested in terms of Section 104 of the Constitution of Jammu & Kashmir is invoked by the petitioners to assail the order dated 12.03.2018 passed by the Additional District Judge, Jammu (hereinafter to be referred as “the trial Court”) whereby two applications, one seeking dismissal of the execution petition and another seeking modification of order dated 11.12.2017, have been rejected.
2. The background facts necessary for disposal of this petition are that in view of the disputes having arisen between the petitioners and respondent No.1 with respect to contract awarded to respondent No.1 vide CA No.CEAFU-09/2012-13, with the intervention of this Court under Section 11 of the Jammu & Kashmir Arbitration and Conciliation Act, 1997 (hereinafter referred to as “the Act”), Shri A.S.Wazir, Retired Chief Engineer respondent No.2 herein, was appointed as sole arbitrator. Respondent No.2 delivered his award on 20.02.2016.
3. Aggrieved, the petitioners challenged the award of the sole arbitrator aforesaid under Section 34 of the Act in the Court of Principal District Judge, Srinagar. An application in this regard was filed on 19.05.2016 which was well within the period of three months prescribed under Sub Section 3 of Section 34 of the Act. The Principal District Judge, Srinagar returned the application in terms of Order VII Rule 10-A for its presentation before the appropriate Forum having jurisdiction. Accordingly, the petitioners filed the returned application before the Principal District Judge, Pulwama on 06.02.2017 along with the copy of the order passed by the Principal District Judge, Srinagar dated 30.01.2017. It appears that the Principal District Judge, Pulwama also returned the application for its presentation before the Additional District Judge, Jammu. As is apparent from the order passed by the Principal District Judge, Pulwama dated 12.08.2017, the application was returned to be presented in the Court of Additional District Judge, Jammu on the ground that the award in question had already been called in question by respondent No.1 before the said Court and, therefore, in view of the settled position of law and the language of Section 42 of the Act, it is the Court of Additional District Judge, Jammu which alone has the jurisdiction to entertain any subsequent proceeding under the Act. It is stated that the order of Principal District Judge, Pulwama dated 12.08.2017 is under challenge in an appeal filed by the petitioners under Section 37 of the Act which is pending disposal before the Srinagar Wing of this Court.
4. It is the case of the petitioners that while appeal under Section 37 of the Act against the order of Principal District Judge, Pulwama is pending adjudication and, therefore, till the appeal is decided by the High Court, the award in terms of Section 36 of the Act cannot be executed. It may be pertinent to mention that the same award which was subject matter of challenge in an application filed by the petitioner under Section 34 of the Act before the Principal District Judge, Pulwama is partially assailed by respondent No.1 before the trial Court. To put it succinctly the award dated 20.02.2016 passed by the sole arbitrator was wholly under challenge under the application which was filed by the petitioners first before the Principal District Judge, Srinagar and thereafter on return before the Principal District Judge, Pulwama. It is the same award which has been partially assailed by respondent No.1 also in terms of Section 34 of the Act before the trial Court. The respondent No.1 has also filed the execution proceedings before the trial Court for execution of the portion of the award which it has accepted. It is in these proceedings, the order impugned, in the circumstances narrated above, has been passed by the trial Court.
5. Having heard learned counsel for the parties and after scrutiny of the record, I find that the only question to be determined in th
