ASSOCIATED CONSTRUCTIONS Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) These two civil revision petitions are filed before this Court under Sec. 115 of CPC challenging the order passed by the LXIX Additional City Civil and Sessions Judge (Commercial Court, CCH-89), Bangalore in A.S.Nos.12/2017 and 13/2017, dismissing the applications filed by the revision petitioner before the Court invoking the provisions under Sec. Order 7 Rule 11 of CPC, wherein prayed the Court to reject the arbitration suit filed under Sec. 34 of the Arbitration and Conciliation Act, 1996 ('the said Act' for short). In support of the application, one of the partner of the defendant in the said suit filed an affidavit stating that an agreement was entered into between the KHB through the plaintiff and the defendant herein on 23/3/1992 for the construction of the houses and when the dispute was arisen between the parties, the matter was referred to the arbitrator. The arbitrator having considered the material available on record, passed the award directing the defendants to pay the arbitral award amount. Being aggrieved by the said arbitral award, a suit is filed by respondent No.1 herein before the Court questioning the very award passed by the arbitrator. The defendant before the arbitration suit filed an application contending that the very suit is filed beyond the limitation period and the period allowed under Sec. 34(3) of the Act is only for a period of three months and on satisfaction, further one month period can be condoned. But in the case on hand, it is contended that the arbitration award was passed on 1/1/2014 and the same was communicated and in pursuance of the communication, a letter was also written to the State Government for satisfaction of the arbitration award. Even an execution petition was filed and in the execution petition also appeared and filed the statement of objections and even if taken the date of appearance before the executing Court and also filing of the objection statement, the suit is hopelessly barred by limitation.

(2.) The learned counsel for the petitioner would vehemently contend that the very contention of the respondent before the suit filed in A.S.No.12/2017 and 13/2017 is that the arbitration award is served on 3/10/2016 and the suit is within time cannot be accepted. The Trial Court while considering the application filed under Order 7 Rule 11 of CPC ignored the same and comes to the conclusion that service is on 3/10/2016 considering the averments made in the plaint and hence the very approach of the Trial Court is erroneous and hence it requires interference of this Court.

(3.) Per contra, the learned counsel for respondent No.1 would contend that under Sec. 31(5) of the Act, it is very clear that arbitration award shall be made in writing and shall be signed by the members of the Arbitration Tribunal and sub-Sec. (5) is clear that after the arbitral award is made, a signed copy shall be delivered to each party. The learned counsel submits that the party before the arbitrator is the Executing Engineer, who entrusted the work to the petitioner herein and no copy is delivered to the Executing Engineer and merely copy is sent to the Chief Engineer cannot be a proper service. The learned counsel submits that while entertaining the application under Order 7 Rule 11 of CPC, the Court has to consider the averments of the plaint and not the defence of the petitioner herein and only considering the averments made in the plaint, the Court can invoke Order 7 Rule 11 of CPC.