UNION OF INDIA Vs. CHADHA ENGINEERING WORKS

JUDGEMENT

(1.) THE short controversy that arise in the present Appeal is whether Section 39 of the Indian Arbitration Act, 1940 (Act for short) provides for an Appeal against the order of dismissal of a suit for making an Award the Rule of Court on the ground that the filing of the Award in the Court was unauthorized and was also barred by the principles of prescription.

(2.) AN Award came to be passed by the learned Sole Arbitrator, Shri R.N. Poddar on 9.8.1996 and the Notice of the same was issued to both the parties on the very same day. However, the Award came to be filed in the Court by Shri S.B. Sharan (who was not the Sole Arbitrator in the case). The filing of the Award was also delayed by many months, and hence was in violation of Sections 14 and 17 of the Act. On an Application being made by Respondent under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short), the learned Single Judge was pleased to reject the Suit for being in contravention to provisions of the Act, in terms of the impugned Order.

(3.) THE learned Additional Solicitor General, Mr. A.S. Chandhiok, appearing for the Appellant laid siege to the correctness of Wee Aar Constructive Builders on the strength of the dictum of the Honble Supreme Court in Shyam Sunder Sharma ?vs- Pannalal Jaiswal, AIR 2005 SC 226 which holds that an appeal, though filed beyond time, is still an appeal, and that dismissal on the ground of delay would still be a decision on the appeal. On a careful perusal of the said Judgment, we are of the opinion that the same does not advance the case of the Appellant in any manner. In that case, the Defendant had filed an Application under Order IX Rule 13 of the CPC and had also preferred an Appeal for setting aside of ex-parte Decree. THE Appeal was dismissed as being filed beyond time and the contention of the Defendant was that since the Appeal had been dismissed as being barred by time and not been refused on merits in effect the Appeal was never before the Court and thus the bar of the Explanation to Order IX Rule 13 of the CPC would not be attracted. THE Explanation reads - "Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree". THE Apex Court, after considering the factual matrix of the dispute, held that the bar of Explanation to Order IX Rule 13 of the CPC, as explained in Rani Chaudhury ?vs- Suraj, 1982(2) SCC 596 would be applicable in light of the Appeal filed, though dismissed on the ground of delay. Shyam Sunder is, therefore, a ruling on the Explanation to Order IX Rule 13 and the bar which is attracted against filing of an application under Order IX Rule 13 because of an Appeal having been preferred and dismissed for any ground but for withdrawal. THE present controversy is rather similar to one answered by their Lordships in Nilkantha.