IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE st ON THE 1 OF MARCH, 2023 MISC. APPEAL No. 232 of 2005 BETWEEN:-

1. FIRM THAKURDAS PRAHLAD DAS REGISTERED PARTNERSHIP FIRM THROUGH PARTNER SHRI HITSHARAN S/O PRAHALAD DAS VAISHYA AGED 56 YEARS, OCCUPATION BUSINESS R/O SHIVPURI (MADHYA PRADESH).

2. SHRI HITSHARAN S/O SHRI PRAHLAD DAS VAISHYA AGED 56 YEARS, OCCUPATION BUSINESS, R/O SHIVPURI.

.....PETITIONER (BY SHRI SANTOSH AGARWAL - ADVOCATE)

AND

1. M.P.RAJYA NAGRIK APURTI NIGAM LTD.

THROUGH : MANAGING DIRECTOR, PARYAVAS BHAWAN, BHOPAL (MADHYA PRADESH).

2. M.P. RAJYA NAGRIK APURTI NIGAM DISTT. BRANCH KHANDWA THROUGH : DISTRICT MANAGER, RAMESHWAR ROAD, KHANDWA, MP.

3. P.N BHARGAVA, ADVOCATE, ARBITRATOR, BRA COUNCIL, SHIVPURI.

.....RESPONDENTS (BY SHRI SHIRAZ QURAISHI WITH SHRI KABIR QURAISHI - ADVOCATE) This appeal coming on for HEARING this day, the court passed the following:

ORDER

This Misc. appeal under Section 37 of the Arbitration Act, has been preferred against the order dated 17.01.2005 passed by IV Addl. Distt. Judge, Shivpuri in Arbitration Case No.1-A/05 C.O.

Brief facts leading to the controversy, are that the present appellant, Partnership firm had encountered a dispute with respondent No.1 in the matter of purchase of grains and non supply thereto and in that regard, various claims were referred to the Arbitration Tribunal pertaining to the contracts entered into between the parties. When the respondents did not participate in the arbitration proceedings, an application under Section 8 and 20 of the Arbitration Act was filed before learned Distt. Judge Shivpuri bearing Case No.26/1991.

Learned Distt. Judge referred the matter to the Arbitrator to be appointed by the respondent No.1 and thereupon, respondent No.1 appointed its Managing Director as an Arbitrator. Since the Managing Director who was acting as an Arbitrator, kept the matter pending for more than two and half years, an application was moved by the present appellant before Distt. Judge about non functioning of the Arbitrator alleging loss and for changing the Arbitrator. Learned Distt. Judge vide its order dated 30.01.1996 changed the Arbitrator and appointed one Shri P.N.Bhargava Advocate to complete the proceedings which were pending before the Managing Director. As the present appellant had led virtually all the evidence and filed all the documents along with his claim with the proposed Arbitrator and had expected that the new Arbitrator would proceed from the stage left by the first Arbitrator and would have decided the point of reference sent by learned Distt. Judge.

But in the earlier process, as more than ten years period passed, the appellant herein prayed for before the Arbitrator for taking additional claim on record on the basis of subsequent events but the Arbitrator referred the matter to the Distt. Judge who vide order dated 19.03.2002 rejected the prayer of the appellant. The order dated 19.03.2002 was challenged by filing W.P.No.1869 of 2002 by the respondent wherein, this Court had directed Distt. Judge to decide the objections taken by the appellant by taking evidence.

After passing of the order in W.P.No.1869 of 2002, appellant filed an application along with copy of the order before learned Distt. Judge to act as per the directions of this Court, but instead, the learned Addl. Distt. Judge by- passing the order of this Court, had refused to decide the objection on the grounds which were not germane after orders of this Court. Thus, challenging the aforesaid order, present appeal has been preferred.

Learned counsel for the appellant submitted that when the High Court in W.P.No.1869 of 2002 had specifically directed to decide the objections of the appellant, it was incumbent upon learned Addl. Distt. Judge to have decided the same but by refusing to exercising jurisdiction vested in it, gross illegality has been committed. It was further been argued that the Arbitrator should have been directed to take into