1. Rule. Mr.K.G.Sukhwani, learned advocate waives service of notice of Rule on behalf of the respondent.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today.
3. The present Civil Revision Application u/s.12 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act,1992 [hereinafter referred to as “the Act”] has been preferred by the petitioner herein to quash and set aside the impugned order dated 22/11/2010 passed by Gujarat Public Works Contracts Disputes Arbitration Tribunal, Ahmedabad (hereinafter referred to as “the Tribunal”) in Civil Application No.42 of 2009 in Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996, by which, learned Tribunal has dismissed the said application submitted by the petitioner herein to condone the delay in preferring the counter claim being Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996.
4. It appears that the respondent herein preferred Arbitration Reference No.178 of 1996 for recovery of the amount against the petitioner herein. It appears that in the said Reference, the petitioner submitted counter claim, which was numbered as Arbitration Reference No.17/2009. There was a delay of 781 days in preferring counter claim and, therefore, the petitioner submitted application being Civil Application No.42 of 2009 in Arbitration Reference No.17 of 2009 requesting to condone the delay. It appears that considering the decision of the Hon'ble Supreme Court in the case of V.A.Tech Escher Wyas Floval Ltd. V/s. M.P.S.E.Board & Anr. reported in 2010 Arb.W.L.J. 116 (SC), learned Tribunal was of the opinion that main Arbitration Reference No.178 of 1996 itself is not maintainable and, therefore, learned Tribunal disposed of the main Arbitration Reference by observing that the same is not maintainable. Despite the fact that learned Tribunal held that the main Arbitration Reference No.178 of 1996 was not maintainable and subsequently, the Tribunal disposed of the same, learned Tribunal considered Civil Application No.42 of 2009 in Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996 and dismissed the said application, which was submitted by the petitioner to condone the delay in preferring the counter claim in Arbitration Reference No.178 of 1996 and dismissed the same by impugned order dated 22/11/2010.
Being aggrieved by and dissatisfied with the impugned order dated 22/11/2010 in Civil Application No.42 of 2009 in Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996, the petitioner herein has preferred the present Civil Revision Application u/s.12 of the Act.
5. Mr.Nirzar Desai, learned advocate appearing on behalf of the petitioner herein has submitted that the learned Tribunal has materially erred in considering Civil Application No.42 of 2009 on merits and has materially erred in dismissing the same. It is submitted that once main Arbitration Reference No.178 of 1996 was held to be not maintainable and learned Tribunal disposed of the same, it was not open for the Tribunal thereafter to consider the application to condone the delay in Arbitration Reference No.17 of 2009, which was counter claim in Arbitration Reference No.178 of 1996. It is submitted that when the main Arbitration Reference itself was held to be not maintainable in view of the decision of the Hon'ble Supreme Court in the case of V.A.Tech Escher Wyas Floval Ltd. (supra), the counter claim in the main Arbitration Reference would certainly be not maintainable and in fact it was so held by the Tribunal, the Tribunal was not required to consider the application for condonation of delay in Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996, which was held to be not maintainable. Under the circumstances, it is requested to allow the present Civil Revision Application and to quash and set aside the impugned order dated 22/11/2010 passed in Civil Application No.42 of 2009 in Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996.
6. Mr.K.G.Sukhwani, learned advocate appearing on behalf of the respondent herein has tried to oppose the present Civil Revision Application, however, he has failed to satisfy the Court how once the main Arbitration Reference was held to be not maintainable, the Tribunal could have decided delay condonation application in Arbitration Reference, which was held to be not maintainable. It is submitted as there was inordinate delay of 781 days, which was not sufficiently explained, the Tribunal has not committed any error in passing the impugned order.
7. Heard learned advocates appearing on behalf of the respective parties at length. It is not in dispute that Civil Application No.42 of 2009 was submitted by the petitioner in Arbitration Reference No.17 of 2009 (which is counter claim) in main Arbitration Reference No.178 of 1996. The said application was submitted to condone the delay in preferring the counter claim in main Arbitration Reference No.178 of 1996. It is not in dispute and it is an admitted position that the Tribunal by common order dated 22/11/2010 disposed of the main Arbitration Reference No.178 of 1996 as well as Arbitration Reference No.17 of 2009 on the ground that the same are not maintainable in view of the decision of the Hon'ble Supreme Court in the case of V.A.Tech Escher Wyas Floval Ltd. (supra). Once the main Arbitration Reference came to be disposed of by the Tribunal by holding that the same is not maintainable, thereafter, it was not open for the Tribunal to consider the delay condonation application, which was submitted in main Arbitration Reference, which was held to be not maintainable. The aforesaid exercise of considering delay condonation application in the Arbitration Reference, which was held to be not maintainable, was exercise in futility. Under the circumstances, when the main Arbitration Reference was held to be not maintainable and the Tribunal disposed of the same accordingly, it was not open for the Tribunal thereafter to consider the delay condonation application in the main Arbitration Reference, which was held to be not maintainable. Under the circumstances, the impugned order dated 22/11/2010 passed in Civil Application No.42 of 2009 in Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996 cannot be sustained and the same deserves to be quashed and set aside.
8. In view of the above and for the reasons stated hereinabove, the present application succeeds. The impugned order dated 22/11/2010 passed in Civil Application No.42 of 2009 in Arbitration Reference No.17 of 2009 in Arbitration Reference No.178 of 1996 is hereby quashed and set aside. Rule is made absolute accordingly. No costs.
[M.R.SHAH,J] *dipti