Misc. Case No. 4 of 2010 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4735 of 2011 M/s. A.B. Singh, a partnership firm, having its office at Phusro, P.O.- Phusro, P.S.- Bermo, District- Bokaro through its partner Bijay Narain Singh son of Late A.B. Singh, Resident of Phusro Bazar, P.O.- Phusro, P.S.- Bermo, District- Bokaro … … Petitioner -Versus- Central Coalfields Limited, a subsidiary of Coal India Enterprise, through its General Manager (Transport), Central Coalfields Limited, Ranchi, Darbhanga House, P.O.- G.P.O., P.S.- Kotwali, District Ranchi … … Respondent --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondent --- : Mr. Deepak Kumar Sinha, Advocate : Ms. Rakhi Sharma, Advocate : Ms. Diksha Dwivedi, Advocate : Mr. Badal Vishal, Advocate : Ms. Swati Shalini, Advocate 16/11.05.2023 2. --- Heard the learned counsel for the parties. The writ petition has been filed for the following reliefs: “(a) For quashing/setting aside the order dated 12.08.2010 (Annexure-7) passed by the learned Sub-judge, Bermo at Tenughat in Misc. Case No.4 of 2010 whereby and whereunder the learned court below, without considering and verifying the period of delay in filing the application under Section 34(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), has been pleased to allow the said application filed by the Respondent u/s 34(2) alongwith the petition under Section 14 of the Limitation Act, 1963 (Annexure- 5) and thereafter the said application of the Respondent filed under section 34(2) of the Act, for setting aside the award by the Arbitrator passed in A.A. No.27/2003 dated 30.07.2007 was admitted. the order dated (b) For quashing and setting aside 20.01.2011 (Annexure- 8) passed by the learned Sub-Judge, I, Bermo at Tenughat in Misc. (A) No.4 of 2010, whereby and whereunder the said learned court has been pleased to dismiss the review petition filed by the petitioner for reviewing the order dated 12.08.2010 (Annexure-7) passed by the learned Sub- Judge, Bermo at Tenughat in the said case. (c) For a direction upon the learned court below to hear the parties afresh and decide the objection of the petitioner in right prospective after proper consideration of delay in filing the application by the respondent u/s 34(2) alongwith the petition under Section 14 of the Limitation Act, 1963. 3. This case arises out of award dated 20.12.2006 which has been set-aside by the learned court below during the pendency of this case 2 vide order dated 17.11.2017 passed in Misc. Arbitration Case No.04/2010 pursuant to an application under Section 34 of the Arbitration and Conciliation Act, 1996 filed by the respondent CCL. The order passed on the petition filed under Section 14 of the Limitation Act, 1963 for condonation of delay in challenging the
Legal Reasoning
award is under challenge in the writ petition. The appeal arising out of order dated 17.11.2017 passed in Misc. (Arbitration) Case No.04/2010 has been separately considered and decided today in Arbitration Appeal No. 3 of 2018. 4. In this writ petition, the petitioner is aggrieved by the order passed on the petition filed for condonation of delay in filing the petition for setting aside the arbitration award whereby the petition under Section 14 of the Limitation Act, 1963 has been allowed by the learned court below. Arguments on behalf of the Petitioner 5.
Legal Reasoning
Learned counsel appearing for the petitioner submitted that the Award dated 20.12.2006 was challenged before the court of learned Sub Judge-I, Ranchi on 12.03.2007 i.e. within the period of limitation. The said court held that it had no territorial jurisdiction to entertain the petition and the case was rejected as not maintainable vide order dated 15.12.2007. The Respondent CCL took 83 days to challenge the order dated 15.12.2007 before the High Court in Misc. Appeal which was ultimately dismissed on 09.12.2009. It has been argued that there is no explanation of delay for 83 days in filing the Misc. Appeal. 6. It has been further argued that after the dismissal of Misc. Appeal by the High Court, the Respondent CCL filed petition dated 04.01.2010 again before Sub Judge-I, Ranchi under Order 7 Rule 10 (A) of the CPC for returning the application and also for fixing a date of appearance at Tenughat. It is submitted that there is no explanation for taking no action during the period from 10.12.2009 till 03.01.2010. It is submitted that filing of petition dated 04.01.2010 before the learned Sub Judge-I, Ranchi for return of application cannot be said to be bonafide in view of the fact that while passing the order dated 15.12.2007, appropriate order for return of application 3 was already passed. Sub Judge-I, Ranchi ultimately dismissed the application for return of application on 16.01.2010 and thereafter, Respondent CCL filed Misc. Case No. 4 of 2010 before Sub-Judge-I at Tenughat alongwith a petition under Section 14 of the Limitation Act, 1963 for condonation of delay. 7.
Decision
It is the case of the writ petitioner that the total time taken from the date of award, after excluding the period of pendency of the case before the Hon’ble Court was 189 days i.e. 69 days was beyond the condonable period of delay of 30 days. 8. It has also been submitted that the petition under Section 14 of the Limitation Act, 1963 before the learned court below was vague, without giving the timeline and even the period of delay was also not mentioned. Accordingly, it is submitted that the impugned order condoning the delay in filing the petition for setting aside the award is fit to be set aside under Article 227 of the Constitution of India. Arguments on behalf of the Respondents 9. Learned counsel appearing for the respondent submitted that the respondent-CCL has been diligent and had filed the petition for setting aside the award within the period of limitation before the court at Ranchi. The parties were fighting on the point of jurisdiction and the dispute with regard to the jurisdiction before whom the petition under Section 34 could be filed was finally settled by the Hon’ble High Court in the miscellaneous appeal. Thereafter, some time was spent in taking out the certified copy of the order and had taken steps for return of the application and ultimately, the respondent filed the application before the competent court at Tenughat. The learned counsel further submitted that the learned court below has rightly allowed the petition for condonation of the delay under Section 14 of the Limitation Act, 1963. The learned counsel submitted that the impugned order condoning the delay does not call for interference in exercise of power under Article 227 of the Constitution of India. Findings of this Court. 4 10. Before proceeding with the case at hand, it would be useful to deal with the scope of interference by this Court under Article 227 of the Constitution of India. 11. The scope of exercise of jurisdiction under Article 227 of the Constitution of India has been elaborately considered by the Hon’ble Supreme Court in the judgement of Sameer Suresh Gupta v. Rahul Kumar Agarwal (2013) 9 SCC 374. The extracts of the Judgment, as relevant for the purposes of this case, are as follows: 6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court’s jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that article were considered by the two-Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai. After considering various facets of the issue, the two-Judge Bench culled out the following principles: (SCC pp. 694-96, para 38) “(1) …………………. (2) ……………………. (3) ……………………. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and 5 circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst invoking certiorari or and entertaining a petition supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike the distinction English courts has almost obliterated between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction, the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” 7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil, and it was held: (SCC pp. 347-49, para 49) “(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above. 6 (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, ‘within the bounds of their authority’. (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High its power of Court can superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) ……………………. (j) ……………………. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of in exercise of interfere 7 interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.” 12. The writ petition has to be considered in the light of the aforesaid judgement. 13. It is not in dispute that the award in the present case was published by the learned Arbitrator on 20.12.2006. This Court finds that the date of receipt of the award by the respondent-CCL is not reflecting from the records. Both the parties have calculated the timeline from the date of award. 14. The application under Section 34(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) was filed on 12.03.2007 by CCL i.e. 02 months 14 days from the date of award and much before expiry of the period of limitation. The petition was registered as Misc. Case No.17 of 2007 which was admitted and ultimately, vide order dated 15.12.2007, it was held that the court at Ranchi had no territorial jurisdiction to entertain the petition and it was observed that the plaint was thereby returned for presentation in proper Court. 15. The order dated 15.12.2007 was challenged before the High Court within the period of limitation to challenge such order in miscellaneous appeal on 07.03.2008 which was ultimately dismissed on 09.12.2009. 16. Thereafter, the respondent-CCL, upon expiry of 25 days from the order passed by the High Court, filed another petition before the Sub Judge-I, Ranchi under order VII Rule 10-A of C.P.C for returning 8 of the application under Section 34(2) of the Act of 1996 and also made a prayer for fixing a date for appearance at another court i.e. at Tenughat, although there was already an order for return of the application while passing the earlier order dated 15.12.2007 when the Sub-Judge, Ranchi had dismissed the petition on the point of jurisdiction. Accordingly, the petition filed before the Sub-Judge-I on 04.01.2010 was rejected on 16.01.2010 as not maintainable. The operative portion of the order dated 16.01.2010 is quoted as under: “Heard the perused the record. On perusal of record, it appears that vide order dated 15.12.07, this court has returned the petition U/s 34 of the Arbitration & Conciliation Act, 1996 to the petitioner for presentation in proper court. Admittedly the petitioner filed a Misc. Appeal under order XLIII (1) CPC vide Misc. Appeal No. 75 of 2008 before the Hon'ble High Court and after dismissal of the appeal, the petitioner filed the instant petition for fixing a date and issuance of notice to the Opposite Party. The petition is as per the provision of Order VII Rule 10A CPC. As per provision of Order VII Rule 10A (5) CPC, where the application made by the plaintiff under Sub-Rule (2) Is allowed by the court, the plaintiff shall not be entitled to file any appeal against the order returning the plaint. Admittedly the plaintiff filed an appeal under Order XLIII(1) before the Hon'ble High Court. Order XLIII Rule 1 CPC reads as follow:- an appeal shall lie from the following orders under the provisions of Section 104 namely, (a) an order under Rule 10 of Order VII returning a plaint to be presented to the proper court (except the procedure satisfied in Rule 10A of the Order VII has been followed). Meaning thereby the appeal only maintainable when the petitioner has not filed any petition under Order VII Rule 10A CPC. Thus, there are two alternative views available to the petitioner. Either he filed an application under Order VII Rule 10A CPC or he filed an appeal under Order XLII Rule 1 CPC without filing any petition under Order VII Rule 10A CPC. Since the petitioner filed an appeal under Order XLIII Rule 1 CPC and the appeal has been dismissed by the Hon'ble high Court vide order dated 9.12.09, therefore in the instant petition of petitioner dated 4.1.10 is found not maintainable, as the court has already passed an order of return of petition of petitioner U/s 34 of Arbitration and Conciliation Act, 1996 for presentation in proper court vide order dated 15.12.07. Hence in the interest of justice, the petition of petitioner dated 4.1.10 is hereby rejected.” 17. The records also reveal that the Respondent-CCL received the original copy of the petition, power and copy of award on 18.01.2010 and thereafter, filed it before the Sub-Judge-I, Bermu at Tenughat on 21.01.2010 alongwith a petition under Section 14 of the Limitation 9 Act, 1963. The case was numbered as Misc. Judicial Case No.04 of 2010. 18. The petitioner filed preliminary objection before the Sub-Judge- I, Tenughat on the point of limitation. 19. However, the learned court condoned the delay in filing application under Section 34 of the aforesaid Act of 1996 vide order dated 12.08.2010. The petitioner filed review of the said order on 13.09.2010 and thereafter vide order dated 20.01.2011, the review was also dismissed. The orders dated 12.08.2010 and 20.01.2011 has been challenged before this Court in the writ petition being W.P.(C). No.4735 of 2011. 20. During the pendency of the writ petition, the learned Sub- Judge-I, Tenughat vide order dated 17.11.2017 set aside the award dated 20.12.2006 which is impugned in the connected Arbitration Appeal No.3 of 2018. 21. This Court finds that the gap after 15.12.2007 (date of rejection of petition on the point of jurisdiction by the learned court at Ranchi) till 07.03.2008 (date of filing the miscellaneous appeal before the High Court) constitutes material component of the period during which the case was not pending before any court of law. This period constitutes about 83 days. 22. This Court finds that the learned court below while dealing with the factum of challenge before the High Court in the miscellaneous appeal has held that the challenge to the order passed by the Sub- Judge, Ranchi will be deemed to be in the same transaction and continuation of the relief sought for under Section 34(2) of the aforesaid Act of 1996 and allowed the application filed under Section 14 of the Limitation Act, 1963. 23. Further delay has been explained by the respondents by submitting that CCL had applied for certified copy of the order passed by the High Court in Misc. Appeal dated 09.12.2009 on 10.12.2009 and certified copy was supplied only on 21.12.2009. The petition for return of the application before learned Sub-Judge- I, Ranchi was filed on 04.01.2010 which was dismissed on 16.01.2010 and immediately thereafter they received the petition, award and Vakalatnama from the 10 court at Ranchi on 18.01.2010 and filed the petition before the Sub- Judge at Tenughat on 21.01.2010 alongwith a petition under Section 14 of the Limitation Act. 24. It is the case of the respondent CCL that the intervening period during which the petition was not pending before one or the other court was spent in obtaining the certified copies of the orders and admittedly the appeal was filed before the High Court within the period of limitation prescribed for filing such an appeal. The learned court below has recorded a finding that the period spent for prosecuting the miscellaneous appeal filed before the High Court will be deemed to be in the same transaction and in continuation of relief sought under Section 34 (2) of the Act of 1996 and ultimately allowed the petition under Section 14 of the Limitation Act and held that the petition under Section 14 of the Limitation Act was maintainable and consequently admitted the miscellaneous appeal for final hearing. The review on this point was also dismissed vide order dated 20.01.2011. However, certain typographical errors in connection with the case number and date of the award have been rectified. 25. This Court does not find any illegality or perversity in the reason assigned by the learned court below in treating the period spent for prosecuting the miscellaneous appeal filed before the High Court to be in the same transaction and in continuation of relief sought before the learned sub-judge at Ranchi under Section 34(2) of the Act of 1996. This Court finds that the other period of delay is relatable to obtaining certified copies of the orders and a small period is relatable to filing a fresh petition under the same court at Ranchi for return of the application, though there was already an order for return of the application. 26. Considering the totality of facts and circumstances of this case and after going through the impugned order, this Court finds that the major chunk of the delay stood satisfactorily explained even if the petition filed under Section 14 of the Limitation Act, 1963 was lacking in important particulars. Accordingly, this Court is not inclined to interfere with the impugned order condoning the delay under Section 14 of the Limitation Act, 1963 relating to filing the 11 petition under Section 34 of the aforesaid Act of 1996 in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, the scope of which has been elaborately dealt with in the case of the judgement of Sameer Suresh Gupta v. Rahul Kumar Agarwal (2013) 9 SCC 374. 27. Accordingly, this writ petition is dismissed. 28. The fact remains that during the pendency of the writ petition, the petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award has also been rejected by the learned court below and is subject matter for consideration in Arbitration Appeal no.3 of 2018 which is also being decided today. Saurav/ (Anubha Rawat Choudhary, J.)