Jagat Ram Trehan & Sons Vs. Union of India
EmailAppeal: Civil Appeal No. 1963 of 1997
Petitioner: Jagat Ram Trehan & Sons
Respondent: Union of India
Apeal: Civil Appeal No. 1963 of 1997
Judges: A.P. MISRA & UMESH C. BANERJEE, JJ.
Date of Judgment: Mar 28, 2001
Head Note:
ARBITRATION
Arbitration Act, 1940
Section 30 with Civil Procedure Code, 1908 – Section 47 – Award – Execution – Award passed on 5.12.90 – Made Rule of Court on 3.8.93 – When execution filed, objections raised – Arbitrator required to pass Award by virtue of his office and appointment as Arbitrator in Ministry – Such Officer/Arbitrator required to relinquish office by 30.11.90 vide letter dated 20.11.90 – Ten days time given to make Awards in ripe cases – Relinquishment on 30.11.90 – Award passed on 5.12.90. Held, to be null and void. (Paras 5, 6, 10)
Cases Reffered:
1. M/s. Construction India v. Secretary Works Department Govern-ment of Orissa and Ors. (JT 1997 (10) SC 220) (Para 9)
JUDGEMENT:
ORDER
1. This appeal is directed against the order of the Delhi High Court wherein the High Court was pleased to allow the appeal of the Union of India.
2. The contextual facts depict that pursuant to a contract entered into by and between the appellant and the Union of India, and by reason of certain disputes Shri J.D. Chopra was appointed as an Arbitrator on 2.5.1988 to adjudicate the same between the parties during the execution of the contract. Subsequently, Mr. Chandwani was appointed in place and stead of Shri J.D. Chopra who was on deputation and acting as Arbitrator in the Ministry of Urban Development, Government of India. Mr. Chandwani, however, passed the Award on 5.12.1990 and the Award was made the rule of Court on 3.8.93 as no objections have been filed by the Union of India. In the execution proceedings, however, the Union of India has raised objections by filing an application under Section 47 C.P.C. contending that the Award dated 5.12.1990 and the decree passed thereon dated 3.8.93 were nullity since Shri Chandwani who passed the Award had already relinquished his office as Arbitra-tor as on 30.11.1990 in terms of the notification as issued by the Government of India. It has however been contended in support of the appeal that no notification was issued in which Chandwani was asked to relinquish the office and to join his duties in the Income Tax Department being his parent department. For conven-ience sake, the office order dated 20th November, 1990 containing the Ministry’s order dated 5th November, 1990 prospectively releasing the Arbitrator with effect from 30th November, 1990 reads as below.
“In pursuance of the order issued in this Ministry office order no. 150112/50 E.D. dated 5th November, 1990, Sri N.J. Chandwani at present on deputation as Arbitrator in this Ministry is re-leased on his duties on the afternoon of 30th November, 1990, with instruction for report for duty, as Member, Appropriate Authority, Income Tax Department, Calcutta, immediately. It has also been decided that in respect of arbitration cases which have been heard and are ripe for giving Award Shri Chandwani should give Awards within 10 days in respect of cases where such Awards cannot be given within 10 days and other cases. Shri Chandwani should resign as Arbitrator immediately under intimation to all concerned.”
3. The factual score depict that Mr. Chandwani had also given a certificate and that is on record wherein clearly stated that he relinquished his office on 30.11.1990. the Arbitration Clause in the contract also says that the arbitration shall cease upon the person (who is appointed Arbitrator) being transferred or vacat-ing his office.
4. The provisions of arbitration clause also show that the arbitration is by a person holding office as Arbitrator in the department.
5. Relying upon the aforesaid clause, however, learned Advocate for the appellant contended that a specified period of 10 days have been allowed to the Arbitrator to pass the Award and as such Award is within the time as noticed in the office order hereinbe-fore. The submission undoubtedly is attractive, but on a closer scrutiny, it reveals that the office order dated 20th November, 1990 indicating 10 days period the same shall have to be calcu-lated from 20th November, 1990, and not from 30th November, 1990 as has been contended by the learned Advocate for the appellant. The above reasoning finds support from the last three lines of the office order which is as below:
“In respect of cases where such Award cannot be given within 10 days and the other cases Shri Chandwani should resign as Arbitra-tor immediately under intimation to all concerned.”
6. There is thus a specific direction on to Shri Chandwani to resign from all cases immediately on relinquishing his post as Arbitrator. The further factum of relinquishment of office and intimation therefor by Shri Chandwani reinforces the submissions of Mr. Qadri that the Award cannot be passed beyond the period noted above. In any event, Clause 25 of the General Conditions of contract also lends some assistance to Mr. Qadri’s submission relevant extract of which reads as below:
Clause 25
………….. The Arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such Chief Engineer or administrative head as aforesaid at the time of such transfer. Vacation office or inability to act, shall appoint another person to act as Arbitra-tor …………..”
7. The other count on which learned Advocate emphasised is that the Arbitrator since appointed by name, question of any resigna-tion would not arise and neither cessation to act as Arbitrator as a member in the department would alter the situation.
8. We are, however, unable to record our concurrence therewith on having due regard to Clause 25 read with office memorandum as noted above.
9. In support of the submission strong reliance has been placed upon the decision of this Court in the case of M/s. Construction India v. Secretary works Department Government of Orissa and Ors. (JT 1997 (10) SC 220 = 1998 (2) SCC 89). In our view the decision above noted does not have any manner of application in the matter under considera-tion and as such does not lend any assistance to the submissions advanced in support of the appeal.
10. The factual position as noticed above, reveals that Mr. Chandwani has given a certificate relinquishing his office on 30th November, 1990 and there is no dispute as regards the factum of relinquishment of office of Mr. Chandwani on 30th November, 1990 and the Award being passed on 5th December, 1990 – Thus admittedly, beyond the period of relinquishment to act as Arbitrator and the High Court, relying on the above factual situation came to the conclusion that upon relinquishment of the office on 30th November, 1990 as Arbitrator, Mr. Chandwani could not have passed any Award on 5th December, 1990 and the Award given has been ascribed to be null and void. We do not find any lacuna in such a finding of the High Court warranting the interference of this Court. An Arbitrator cannot possibly pass an Award after relinquishment of his office as an Arbitrator.
11. The appeal thus fails and is dismissed. No order as to costs.
1. This appeal is directed against the order of the Delhi High Court wherein the High Court was pleased to allow the appeal of the Union of India.
2. The contextual facts depict that pursuant to a contract entered into by and between the appellant and the Union of India, and by reason of certain disputes Shri J.D. Chopra was appointed as an Arbitrator on 2.5.1988 to adjudicate the same between the parties during the execution of the contract. Subsequently, Mr. Chandwani was appointed in place and stead of Shri J.D. Chopra who was on deputation and acting as Arbitrator in the Ministry of Urban Development, Government of India. Mr. Chandwani, however, passed the Award on 5.12.1990 and the Award was made the rule of Court on 3.8.93 as no objections have been filed by the Union of India. In the execution proceedings, however, the Union of India has raised objections by filing an application under Section 47 C.P.C. contending that the Award dated 5.12.1990 and the decree passed thereon dated 3.8.93 were nullity since Shri Chandwani who passed the Award had already relinquished his office as Arbitra-tor as on 30.11.1990 in terms of the notification as issued by the Government of India. It has however been contended in support of the appeal that no notification was issued in which Chandwani was asked to relinquish the office and to join his duties in the Income Tax Department being his parent department. For conven-ience sake, the office order dated 20th November, 1990 containing the Ministry’s order dated 5th November, 1990 prospectively releasing the Arbitrator with effect from 30th November, 1990 reads as below.
“In pursuance of the order issued in this Ministry office order no. 150112/50 E.D. dated 5th November, 1990, Sri N.J. Chandwani at present on deputation as Arbitrator in this Ministry is re-leased on his duties on the afternoon of 30th November, 1990, with instruction for report for duty, as Member, Appropriate Authority, Income Tax Department, Calcutta, immediately. It has also been decided that in respect of arbitration cases which have been heard and are ripe for giving Award Shri Chandwani should give Awards within 10 days in respect of cases where such Awards cannot be given within 10 days and other cases. Shri Chandwani should resign as Arbitrator immediately under intimation to all concerned.”
3. The factual score depict that Mr. Chandwani had also given a certificate and that is on record wherein clearly stated that he relinquished his office on 30.11.1990. the Arbitration Clause in the contract also says that the arbitration shall cease upon the person (who is appointed Arbitrator) being transferred or vacat-ing his office.
4. The provisions of arbitration clause also show that the arbitration is by a person holding office as Arbitrator in the department.
5. Relying upon the aforesaid clause, however, learned Advocate for the appellant contended that a specified period of 10 days have been allowed to the Arbitrator to pass the Award and as such Award is within the time as noticed in the office order hereinbe-fore. The submission undoubtedly is attractive, but on a closer scrutiny, it reveals that the office order dated 20th November, 1990 indicating 10 days period the same shall have to be calcu-lated from 20th November, 1990, and not from 30th November, 1990 as has been contended by the learned Advocate for the appellant. The above reasoning finds support from the last three lines of the office order which is as below:
“In respect of cases where such Award cannot be given within 10 days and the other cases Shri Chandwani should resign as Arbitra-tor immediately under intimation to all concerned.”
6. There is thus a specific direction on to Shri Chandwani to resign from all cases immediately on relinquishing his post as Arbitrator. The further factum of relinquishment of office and intimation therefor by Shri Chandwani reinforces the submissions of Mr. Qadri that the Award cannot be passed beyond the period noted above. In any event, Clause 25 of the General Conditions of contract also lends some assistance to Mr. Qadri’s submission relevant extract of which reads as below:
Clause 25
………….. The Arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such Chief Engineer or administrative head as aforesaid at the time of such transfer. Vacation office or inability to act, shall appoint another person to act as Arbitra-tor …………..”
7. The other count on which learned Advocate emphasised is that the Arbitrator since appointed by name, question of any resigna-tion would not arise and neither cessation to act as Arbitrator as a member in the department would alter the situation.
8. We are, however, unable to record our concurrence therewith on having due regard to Clause 25 read with office memorandum as noted above.
9. In support of the submission strong reliance has been placed upon the decision of this Court in the case of M/s. Construction India v. Secretary works Department Government of Orissa and Ors. (JT 1997 (10) SC 220 = 1998 (2) SCC 89). In our view the decision above noted does not have any manner of application in the matter under considera-tion and as such does not lend any assistance to the submissions advanced in support of the appeal.
10. The factual position as noticed above, reveals that Mr. Chandwani has given a certificate relinquishing his office on 30th November, 1990 and there is no dispute as regards the factum of relinquishment of office of Mr. Chandwani on 30th November, 1990 and the Award being passed on 5th December, 1990 – Thus admittedly, beyond the period of relinquishment to act as Arbitrator and the High Court, relying on the above factual situation came to the conclusion that upon relinquishment of the office on 30th November, 1990 as Arbitrator, Mr. Chandwani could not have passed any Award on 5th December, 1990 and the Award given has been ascribed to be null and void. We do not find any lacuna in such a finding of the High Court warranting the interference of this Court. An Arbitrator cannot possibly pass an Award after relinquishment of his office as an Arbitrator.
11. The appeal thus fails and is dismissed. No order as to costs.
