1. Challenge is made to the order of City Civil Court dated 7th July 2011 and 26th September 2011 respectively below Exhs. 54 and 164 in Regular Civil Suit 2457/98 by way of this petition preferred under Article 227 of the Constitution of India.
2. It is the case of the present petitioner that he was a broker and the respondent was a sub broker at the Ahmedabad Stock Exchange. Certain disputes arose between the parties which were referred to the Arbitrators which culminated into award on 29th November 1997 directing the respondent to pay a sum of Rs 3,50,193.50 ps to the petitioner herein.
3. The .respondent challenged the said award by preferring the application No. 109/98 before the City Civil Court, Ahmedabad under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said "Act" ) and the Court after hearing both the sides dismissed this application, vide its order dated 22nd April 199.
3.1 The First Appeal was preferred being First Appeal No. 1300/99 challenging the said order dated 22nd February 1999 passed in Civil Misc. Application No. 109/99 dismissing the application and consequently thereby confirming the award rendered by the Arbitrators on 29th November 1997, by elaborate reasonings.
4. When challenged before the Apex Court by way of Special Leave Petition (Civil) No. 17337/11 on 9th January 2012 the same was dismissed as well and the award passed by both the arbitrators has thus been confirmed.
5. A Civil Suit was already filed by the present respondent being Summary Civil Suit No. 2457/98 under Order 37 Rule 2 for a sum of Rs 21,77, 167/- where unconditional leave to defend was granted in favour of the present petitioner on 15th July 1999 and the same was transferred to the list of long causes suits.
6. In the said summary suit on 6th September 2010, an application was moved by the present petitioner inter alia urging to dismiss the suit on the principle of res judicata.
7. Both the sides were directed to adduce the evidences. After filing the affidavit in lieu of examination in chief as also after the cross-examination on 7th July 2011, the Court dismissed this application of present petitioner by holding that the suit of the plaintiff (respondent herein) is maintainable and the City Civil Court has jurisdiction to try the suit as plaintiff's suit as a whole is not barred by the said principle of res judicata.
8. Once again, the application of review of such order was preferred by the petitioner herein on 29th July 2011 by pointing out that there was an error apparent on the face of the record and the Court after availing opportunity of hearing to both the sides rejected the said application of review.
9. Resultantly both the orders have been challenged by way of the present application by raising various grounds mentioned in the petition.
10. Respondent-original plaintiff (sub broker) has objected to the very maintainability of this petition in wake of alternative, efficacious remedy available. It is also further contended that the grant of relief as sought for by the petitioner would amount to granting final decree.
11. For the reasons to be followed hereinafter this petition requires no acceptances on merits.
12. At the outset, it is to be noted that this petition is preferred under Article 227 of the Constitution of India.
13. It would be profitable to note the decision of the Supreme Court rendered in case of Surya Dev Rai Vs. Ram Chander Raj and Ors reported in (2003)6 SCC 675 where it is held that scope of power of superintendence conferred on the High Court under Article 227 is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court in paving the path of justice and removing any obstacles therein. The supervisory jurisdiction is akin to appellate, revisional or corrective jurisdiction. And here the High Court may not only quash and set aside the impugned proceedings, but it may also make such direction as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. However, while discussing the history of development of both jurisdictions under Article 226 and 227 of the Constitution of India, it is further held that supervisory jurisdiction but, neither it is available for correcting mere errors of fact or law but, the same is available only when error is manifest and apparent on the face of the record and to grave injustice or gross failure of justice has been occasioned thereby. However, when there is alternative efficacious remedy available by way of appeal or revision to the person aggrieved power under either of these articles to be used sparingly. Here the High Court is not to convert itself into the Court of appeal and reappreciate or re-evaluate evidence or correct errors of mere formal or technical character or those made in drawing inferences
14. At the outset to be stated that the case does not call for excersing the supervisory jurisdiction under Article 227 of the Constitution. Here is not the case where the Subordinate Court has assumed the jurisdiction which it does not have or has it failed to exercise its jurisdiction nor the jurisdiction is exercised in a manner as not permitted by law and the failure of justice or gross injustice is occasioned hereby.
15. Mr.
Navin Thakkar party in person addressed this Court at length and he also pressed into service detailed written submissions. It is the say of the petitioner that he has a decree in favour and there are various round of litigations undertaken by the present respondent before the High Court and the Supreme Court and that respondent has failed on all occasions and still he is unable to get the fruits of the decree. He further lamented the fact that in the Civil Suit pending before the City Court Ahmedabad the petitioner will need to undergo the very same exercise which has been done all these years and therefore, by comparing the claims put forth by the respondent before the arbitrators and the reliefs claimed in the Summary Suit, he attempted to point out why the suit is not maintainable and principle of resjudicata requires employment to the facts of the instant case.
16. Learned advocate for the respondent Mr. Dave urged that the claim of the respondent in respect of the share of Shri Rang FinCap company was not decided by the arbitrators for want of jurisdiction in respect of these shares. Moreover, after more than 12 years of filing of Summary Suit, such an application has been filed requesting for framing preliminary issue on res judicata. On this as also on various other grounds mentioned in the written submissions, it is emphasised that the subject matter was totally different and respondent is clamouring for adjudication of claim since long.
17. As is apparent from the record, on due adjudication of rival claims, the award of arbitrators as mentioned hereinabove was passed and the same was confirmed right upto the Apex Court. If one notices the claims made by the respondent before the Arbitrators. The claim was passed and the same was made by letter dated 8th October 1996 and 5th November 1996 respectively is far the sum of Rs 1,50,000/- and Rs 2,45,000/- which are in terms held as not sustainable. It is also further noted in the said award that in respect of sum of Rs 5,90,000/- made vide communication dated 15th May 1997, repeatedly request was made to the respondent for adducing banks statement and substantial evidences for proof thereof, but, nothing has been produced and on the contrary, it was objected to by the respondent.
18. Again as regards the amount of Rs 18,77,169-00/- demanded by the respondent vide its communication dated 27th May 1997 the arbitrators noted that from the accounts of both the parties, it is apparent that the demand received by the present petitioner was to the tune of Rs 19 lakhs which was indicative that no amount of respondent was due from the petitioner but, the respondent was to make payment to the petitioner.
19. A particular mention is needed in respect of shares of Shri Rang Fincap Company which was executed on 4th September 1996, As these dealings were outside the purview of rules and regulations of Ahmedabad stock exchange as per the circular dated 4th September 1996, the arbitrators opined that the same did not come within their jurisdiction and therefore it chose not to adjudicate upon the said dispute.
20. Thus, they concluded, the responsibility of the respondent to pay the sum of Rs 3,50,193.50 ps which he was directed to pay the present petitioner with 10% interest till the date of payment.
21. This award on 29th November 1997 as noted earlier is confirmed and therefore the prayer made in Summary Civil Suit No. 2457/1998 shall have to be examined at the touchstone of this award.
22. The respondent who is the plaintiff in the said suit has claimed a sum of Rs 2,45,202.15 ps and the said demand is found to be non-genuine by the arbitrators. The sum of Rs5,90 lacs demanded vide communication dated 15th May 1997 also was found to be non genuine and it was in fact held to be a wrong demand. With regard to the claim of security deposit, the arbitrators negatived such claim. They also observed that the security deposits in terms of share were returned to the respondents and these shares have been kept as collateral security with Dena Bank and thus, there is already a discussion with regard to the security deposits as the sum of Rs 3 lakhs have been demanded.
23. However, for the sum of Rs 7,92,079.35 ps sought for the income of Shri Rang Fincap Ltd, the issue has not been adjudicated by the arbitrators for admittedly falling outside their purview. Although there is a repeated reference of non-co-operation on the part of the respondent plaintiffs, when there was a request for production of necessary documents, at the time of reference to arbitration, the fact remains that for this amount of Rs 7,92,079/- as rightly held by the learned Presiding Officer City Court, matter requires trial. The court in the order impugned reiteratively noted that it is not opining on the merits, but, the principle of res judicata would not apply to the amount of Rs 7,92,079.35 ps nor would it apply to Rs 2,49,885.50 ps.
24. As far as other amount are concerned, dispute in that regard is already adjudicated and on detailed discussion, the award is passed on those aspects which would not certainly require any further adjudication. However, relief in Summary suit concerning these two items being the amount of Rs 7,92,079.35 and the sum of Rs 2,49,885.50/- the Court correctly ordered that the suit of the plaintiff (present respondent) is maintainable. There is thus no error and neither jurisdictional error nor any error apparent on the face of the record which calls for any interference.
25. The petitioner is aggrieved by the fact that he is unable to enjoy the fruits of his decree but for which he would have other legal remedies available and that cannot be the ground denying the respondent to pursue its suit on the ground of res judicata.
26. In wake of the facts discussed hereinabove, considering the fact that much time has elapsed, it is expected that the suit which of the year 1997 shall be proceeded with as expeditiously as possible and preferably within eight months from the date of the order hence, both the sides shall co-operate utmost in early disposed of the same.
27. With this note petition is dismissed, with no order as to costs.
(Ms.
Sonia Gokani,J.) mary// Top