IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29th DAY OF MAY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN M.F.A. No.5585/2018 (AA) BETWEEN:
P. GOPAL RAJU, AGED ABOUT 70 YEARS, SENIOR CITIZEN, S/O. KRISHNAMARAJU, NO.56 (R-11), 2ND FLOOR, GUTTAHALLI MAIN ROAD, MALLESWARAM, BENGALURU – 560 003. ... APPELLANT (BY SRI P. GOPAL RAJU, PARTY-IN-PERSON) AND:
1. THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF URBAN DEVELOPMENT, NIRMAN BHAVAN, NEW DELHI – 110 001.
2. THE EXECUTIVE ENGINEER , B C D II C P W D, ‘C’ WING, KENDRIYA SADAN, KORAMANGALA, BANGALURU – 560 034.
3. (a) SRI K.K. MUTREJA, ARBITRATOR, DISPENSED WITH FROM 13-10-2009.
(b) SRI RAJIVE KUMAR, ARBITRATOR, 4TH FLOOR, OLD C G O BUILDING, 101, M.K. ROAD, MUMBAY – 400 020.
4. SHRI N.S. NARAYAN, LOCAL COMMISSIONER, DISPENSED WITH FROM 13-10-2009.
5. THE CHIEF ENGINEER , C P W D, SOUTHERN ZONE-III, IST FLOOR, ‘A’ WING, KENDRIYA SADAN, KORAMANGALA, BANGALURU – 560 034. ... RESPONDENTS (BY SRI ADITYA SINGH, CGSC FOR R-1, R-2 & R-5; NOTICE TO R-3 & R-4 ARE D/W) ****** THIS MFA IS FILED U/S 39(1)(ii)(iii)(vi) OF ARBITRATION ACT, AGAINST THE ORDER DATED 12/06/2018, PASSED ON IA.NO.3, IN A.S.NO.5/2001, ON THE FILE OF THE I ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU (CCH-2), DISMISSING THE IA.NO.3 FILED U/SEC.30(c) OF THE ARBITRATION ACT 1940 R/W. SEC.151, SEC.114(a) & (b) OF CPC.
THIS APPEAL COMING ON FOR HEARING - INTERLOCUTORY APPLICATION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal was listed yesterday to hear I.A.No.I/2018 filed by the appellant, who has appeared as party-in-person seeking a direction. While hearing the said application, the main appeal was heard in entirety in the pre-lunch session for the purpose of dictating judgment. The party-in-person as well as learned counsel for Central Government Standing Counsel (CGSC) for respondent Nos.1, 2 and 5 were directed to appear in the post-lunch session. However, party-in-person did not appear in the post-lunch session yesterday. In the interest of justice, matter was adjourned to today. It has been called twice. There is no appearance of the party-in- person.
2. We have heard appellant - party-in-person and learned CGSC at length yesterday. We had also intimated to the party-in-person and learned CGSC about the judgment to be passed in the appeal. In the circumstances, we proceed to pass the judgment.
3. The appellant has assailed order dated 12/06/2018, passed in A.S.No.5/2001 by the I Addl. City Civil and Sessions Judge, Bangalore. Infact, the said A.S.No.5/2001 was disposed of by judgment dated 12/03/2009 and thereafter, miscellaneous first appeal was filed before this Court and subsequently, a special leave petition was also filed before the Hon’ble Supreme Court. However, once again an application was filed under Section 30(c) of the Arbitration Act, 1940 [hereinafter, referred to as “the Act”] r/w Section 151, 114 (a & b) of Code of Civil Procedure, 1908, seeking clarification of orders dated 13/01/2016 and 23/04/2016, passed by the trial Court as well as its judgment dated 12/03/2009.
4. This appeal has a checkered history. Briefly stated, the facts are that on 20/11/1989, an agreement was entered into between the respondents and the appellant, which was in the nature of a works contract. Clause 25 of the said agreement provided for an arbitration clause under the provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force to apply to the arbitration proceeding. On account of there being a dispute between the parties, matter was considered in an arbitration proceeding and award was passed on 18/10/2000. The said award was assailed by the appellant in A.S.No.5/2001 before the Addl. City Civil Judge, Bangalore, who on 01/09/2003 dismissed the suit. The same was assailed before this Court in MFA.No.7458/2003 which allowed the appeal and remanded the matter to the trial Court under the provisions of the Arbitration Act, 1940. Against which, a review petition was filed in MFA.No.7458/2003 as R.P.No.367/2006, which was also rejected by this Court. Being aggrieved, the appellant filed SLP.No.1269/2007 before the Hon’ble Supreme Court assailing the judgment passed in MFA.No.7458/2003 as well as the order passed in the review petition. The Hon’ble Supreme Court directed the trial Court to dispose of the suit expeditiously and within a period of four months under the provisions of the 1940 Act, although by then, the Arbitration and Conciliation Act 1996 was enacted and enforced. Thus, the judgment of this Court was affirmed by the Hon’ble Supreme Court.
5. The trial Court considered A.S.No.5/2001 on merits and three claims which were granted by the Arbitrator were affirmed and in respect of seven claims, which were rejected by the learned Arbitrator, the matter was remanded to the Arbitrator for fresh consideration. Sri A.P.Joshi, was appointed as Arbitrator, as the earlier Arbitrator had retired on attaining the age of superannuation. The appellant did not appear before the Arbitrator.
6. In the meanwhile, appellant had challenged judgment passed in A.S.No.5/2001 before this Court in MFA.No.3752/2009 by judgment dated 07/08/2013 the said appeal was dismissed confirming the judgment and order dated 12/03/2009 passed in A.S.No.5/2001 and a direction was issued to appoint a fresh Arbitrator. Accordingly, on 01/11/2013, Sri Rajiv Kumar was appointed as an Arbitrator pursuant to the direction issued by this Court in MFA.No.3752/2009 dated 07/08/2013. However, appellant challenged judgment of this Court passed in MFA.No.3752/2009 before Hon’ble Supreme Court. The Hon’ble Supreme Court by order dated 19/07/2016 dismissed SLP.No.15007/2016 and confirmed the judgment of this Court dated 07/08/2013 passed in MFA.No.3752/2009.
7. Since the appellant did not appear before the Arbitrator, the arbitration proceedings were terminated on 09/06/2014. Challenging termination of the arbitration proceedings, an application was filed by the appellant herein in A.S.No.5/2001 and an order was passed on 13/01/2016. Subsequently, another order was passed in the said suit on 23/04/2016. Pursuant to the orders passed by the trial Court Sri Rajiv Kumar, was once again appointed as Arbitrator. But the appellant remained absent before the said Arbitrator also and the proceedings before the Arbitrator was terminated on 05/05/2017.
8. But in the meanwhile, as already noted, I.A.No.3 was filed in A.S.No.5/2001 seeking clarification of orders dated 13/01/2016 and 23/04/2016 and judgment dated 12/03/2009 passed in arbitration suit. By the impugned order dated 12/06/2018, the said applications have been dismissed. Being aggrieved, this appeal has been preferred.
9. We have heard appellant, who has appeared as party-in-person and learned C.G.S.C., Sri Aditya Singh, for respondent Nos.1, 2 and 5 at length and perused the material on record.
10. The controversy in this appeal is in a very narrow compass. The appellant is seeking clarification of orders dated 13/01/2016 and 23/04/2016 as well as judgment dated 12/03/2009 passed in A.S.No.5/2001. As far as the judgment dated 12/03/2009 is concerned, the said judgment was passed by the trial Court, which was assailed before this Court in MFA.No.3752/2009 and which has been affirmed by the Hon’ble Supreme Court in SLP.No.15007/2016. In the circumstances, appellant could not have filed any application seeking clarification of the judgment dated 12/03/2009 before the trial Court. The trial Court has rightly dismissed of the said application seeking clarification of its judgment dated 12/03/2009, which has merged with the judgment of this Court. Hence, we find no infirmity insofar as the said order is concerned.
11. As far as the clarification of orders dated 13/01/2016 and 23/04/2016 sought for by the appellant is concerned, the same was the order passed on I.A.No.III, which was disposed of with the following observations.
O R D E R (1) I.A.No.3, dated: 07.10.2014 filed by the Petitioner/Plaintiff/Appellant under Section 31 of the Arbitration Act, 1940 Read with Section 151 of CPC., to set aside the orders dated 09.06.2014 passed by the Arbitrator– R.3(b); is hereby allowed.
(2) The Order dated 09.06.2014 passed by the Arbitrator-Respondent No.3(b) in Agreement No.82/BCD-II/1989-90 (M/s.Global Engineering Works Syndicate Vs. Union of India in the name of work : C/o 100 bedded hospital for NIS at Bangalore); is hereby set aside.
(3) It is hereby ordered that the Arbitrator is to be appointed by the 2nd Respondent within two weeks from the date of receipt of copy of this order, who shall dispose off the matter within a period of 06 (six) months.
(4) No costs.”
Subsequently, on 23/04/2016, the order dated 13/01/2016 was modified in the following terms:-
“O R D E R (1) The application dated 14.01.2016 filed by the Appellant under Section 114 of CPC., to review orders dated: 13.01.2016 on application under Section 31 of the Arbitration Act, 1940; is hereby allowed in part.
(2) The order dated: 13.01.2016, is hereby modified as below.
(1) XXX XXX XX (2) XXX XXX (3) As per the order passed by the Hon’lbe High Court of Karnataka dated: 07.08.2013 in MFA.No.3752/2009, the Respondent No.2 shall take measures for the constitution of Arbitral Tribunal in accordance with law to dispose off the matter as per the order of this court dated 12.03.2009, which is confirmed by the order dated 07.08.2013 in MFA.3752/2009.
(3) xxx xxx xx”
The aforesaid orders are produced at Annexures “L” and “M” to the memorandum of appeal.
12. On consideration of the same, it is noted that the said orders have been passed having regard to the judgment passed by this Court in MFA.No.3752/2009 dated 07/08/2013, which has been affirmed by the Hon’ble Supreme Court. In the circumstances, we find that there was nothing further to be clarified by the trial Court in A.S.No.5/2001. In the circumstances, the trial Court has rightly dismissed the said application.
13. It has also been brought to our notice that the appellant has recently filed another application challenging the termination of the arbitration proceedings by the arbitrator on 05/05/2017 and the said application is pending consideration. We do not say anything further on the said application. We however say that the said application shall be considered on its own merits. We find no merit in this appeal. Appeal is hence, dismissed.
In view of disposal of the appeal. I.A.No.I/2018 stands dismissed.
Sd/- JUDGE Sd/- JUDGE *mvs