STATE OF U P Vs. INDER VIR SINGH

JUDGEMENT

(1.) BINOD Kumar Roy and N. B. Asthana, JJ. This is an appeal under Section 39 of the Arbitration Act against the judgment and order dated 28-4- 1995 passed by the Civil Judge, Haridwar in Misc. Case No 25 of 1993 and Original Suit No. 27 of 1993. By the impugned order the Civil Judge had rejected Misc Case No. 25 of 1993 preferred by the Superintending Engineer, Eastern Ganga Canal Construction Circle, Haridwar filed under Section 30/33 of the Act and had made the award dated 25-1-1993 as a rule of the Court.

(2.) LEARNED counsel appearing on behalf of the respondent No. 1 raised an objection about the maintainability of this appeal submitting that the appellant State of U. P. not having filed any objection under Section 30/33 of the Act in the court below, this appeal is not maintainable. He referred to paragraph 2 of the counter affidavit dated 25-9-1995 sworn by Sunil Kumar, partner of the firm- respondent No. 1. LEARNED counsel for the respondent No. 1 further contended that the lower court records would show that the objection raised has got substance, thus, be accepted and appeal be dismissed.

(3.) WE also finds that an application dated 9-12-93 under Order VI, Rule 17 read with Section 151 CPC was filed seeking impleadment of the State of Uttar Pradesh through Superintending Engineer, Ganga Canal Construction Circle, Haridwar etc. stating as follows: "it is submitted that the claimant opposite party in Para 31 of the counter affidavit has raised an objection that the contract in question was entered into between the claimant and the State of Uttar Pradesh. It has been pleaded that the objections filed only by the Superintending Engineer and the Executive Engineer are not maintainable since the State of Uttar Pradesh has not been made a party in the objection. Though it has been ordered that the objection Nos. 1 and 2 are competent enough in their official capacity to challenge the validity of the award, yet it is necessary that in order to meet any legal lacuna the State of Uttar Pradesh which is represented by the Superintending Engineer is also made a party to the objections. " The above petition after contest by respondent was rejected by the court below vide its order dated 28- 2-94 after observing, interalia, that if this amendment is allowed, the defence available to the opposite party (namely the defect of non-filing of any objection by the State of Uttar Pradesh within 30 days of the notice of the filing of the award) shall disappear. WE are further of the view that in absence of the State of Uttar Pradesh, who was defendant No. 1 to the suit, the objection of the appellant was defective.