HARISHCHANDRA Vs. SARDAR SAROVAR NARMADA NIGAM LTD

JUDGEMENT

(1.) At the outset, Mr. Nirzar Desai, learned advocate for the respondents has raised a preliminary objection to the very maintainability of the petition on the ground that against an order passed by the Arbitration Tribunal, a revision lies to the High Court under section 12 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 (hereinafter referred to as the "Act").

(2.) On the other hand, Mr. Percy Kavina, Senior Advocate, learned counsel with Mr. Devdip Brahmbhatt, learned advocate for the petitioner submitted that the above decisions would not be applicable to the facts of the present case. To substantiate the contention, the learned counsel invited the attention of the court to the provisions of section 12 of the Act which makes provision for revision. It was submitted that the said section provides that an aggrieved party may file a revision against an award or interim award made or reviewed by the Arbitration Tribunal. It was submitted that the impugned order passed by the Tribunal cannot be termed either as an award or interim award made or reviewed under the Act. Reference was made to section 8 of the Act to submit that sub- section (1) thereof provides for reference to the Tribunal and making of award, to submit that the same provides for making a reference within one year from the date when the dispute had arisen. Sub-section (2) provides that if the Tribunal is satisfied that the requirements of the Act are satisfied, it may admit the reference and where it is not so satisfied, it may reject the reference summarily. Sub-section (3) of section 8 provides that where a reference is admitted under sub-section (2), the Tribunal, after recording evidence and perusing the material on record and affording an opportunity of hearing to the parties, may make an award or an interim award. It was submitted that, therefore, section 8 of the Act is in two parts: the first part is the threshold test, where the Tribunal decides whether to admit or reject the reference; and the second part is that after the reference is admitted, the Tribunal may make an award or an interim award. Thus, an award can be made only after the reference is admitted. It was submitted that the decision of the Supreme Court in the case of Essar Constructions v. N.P. Rama Krishna Reddy (supra) was rendered in the context of the provisions of the Arbitration Act, 1940 whereas the scheme of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 works completely differently and hence, the said decision would have no applicability in the present case. It was submitted that in terms of the above decision, when an application under section 5 of the Limitation Act is dismissed, the application under section 30 of the Arbitration Act, 1940 would consequently stand dismissed whereas in the present case upon the application for condonation of delay being dismissed, it is the reference that stands rejected and not an award or interim award, and hence, the provisions of section 12 of the Act would not be attracted and the only remedy available to the petitioner is by way invoking article 226 of the Constitution of India.

(3.) Having regard to the rival submissions advanced by the learned counsel for the respective parties, the question that arises for consideration while considering the maintainability of the petition is as to whether the order passed by the Tribunal rejecting the application for condonation of delay made under section 5 of the Limitation Act would amount to an order refusing to make an award on the ground of delay.