PRADESH, SHIMLA v. Executive Engineer

The Hon(cid:146)ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the Decree Holder: Mr.Bimal Gupta, Advocate. For the Judgment Debtor: Mr.Sunil Mohan Goel, Advocate. Dev Darshan Sud, J. The facts of this case are quite revealing. It is unfortunate that a statute (Arbitration and Conciliation Act) which has been enacted for the purposes of putting an end to disputes should result in extending them to an extent where they become interminable forcing parties to approach Court on repeated occasions. The petitioner herein has filed the execution petition on the basis of a photocopy of an award purported to have been signed by the Arbitrator. Notice was issued to the respondent as also to the Arbitrator who has filed an affidavit stating therein that so far as he recollects, when the parties were called upon by him 1 Whether Reporters of Local Papers are allowed to see the judgment? 2 for further hearing, the award (photocopy of which has been placed on the record as annexure-A) has been destroyed by him. This is a shocking state of affairs. He was examined on oath on 7th September, 2007. He states:- (cid:147)I have seen mark ‘X(cid:146) which is photocopy of the award made in the arbitration proceedings. It has been signed by me on each page. This was signed by me on 18th July, 2006. This award was dictated by me to my Steno. My Steno put up these papers before me for signatures on which I signed. The stamp papers, bought by the claimants, were supplied to me. These papers were filed before me on my asking. No hearing was held by me after 18th July,

2006. Thereafter I fixed the case for rehearing on 14th March, 2007. Between 18th July, 2006 and 24th February, 2007 I did not issue any communication to any of the parties(cid:148). This statement leave no doubt in my mind that the Arbitrator had in-fact made the award but for reasons best known to him he destroyed the stamp papers. He admits that the stamp papers were supplied to him for writing of the award. Destruction of the stamp paper itself constitutes an offence under the Stamp Act. However, taking into consideration that the Arbitrator is a public servant, at the fag end of his career, I need not pursue the matter further in view of the order which I intend to pass. 3 Without going into the legality of the matter as to whether the photocopy constitutes a valid award under the provision of the Arbitration and Conciliation Act, 1996, on the basis of which execution petition can be filed, I have put it to the parties as to whether they are willing to have the matter re- determined by an Arbitrator appointed by this Court.

Both the parties have unequivocally given their consent to an Arbitrator being appointed to adjudicate the dispute which has arisen between them. Accordingly, Shri Ramakant Sharma, Advocate, is appointed as Arbitrator in the matter. He will commence proceedings from the stage at which the previous Arbitrator Shri Satish Chand Sood had left the case. The matter is complete and ripe for arguments. The record of the arbitration proceedings, so far conducted, will be handed over to Shri Ramakant Sharma, Advocate, by the respondent within a period of two weeks from today. Parties shall also be present before him at the venue to be fixed by him on Ist August, 2008. Shri Ramakant Sharma shall proceed with the matter with due expedition. This Court has been given to understand that barring arguments nothing else remains to be done. However, in case the parties so desire they may move the Arbitrator for recording of evidence etc. as may be required.

The Arbitrator(cid:146)s fee is fixed at Rs.75,000/- which will be borne equally by both the parties. In addition, he shall be entitled to secretarial and miscellaneous charges as incurred by him. The chapter regarding destruction of stamp papers and destruction of the award shall stand closed. Needless to say that Shri Sharma will proceed with the matter in its own manner 4 uninfluenced by the photocopy of the award which is on the record of this case. July 8, 2008 (aks) (Dev Darshan Sud) Judge.