MANISH ENGINEERING ENTERPRISES Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) THIS is a miscellaneous application made by the applicant Engineering Company, seeking to review/recall the order dated 22-9-2006, passed by the then hon'ble Chief Justice of this Court (A. N. Ray, C. J.)on an application filed by the respondents-Indian farmers Fertilizer Co-operative Limited (in short 'iffco' ). The application was moved in applicant's arbitration Application No. 41 of 2002, which sought to appoint an arbitrator under section 11 of the Arbitration and Conciliation act, 1996 (hereinafter referred to as the Act), to decide their money claim against the respondents. The said order dated 22-9-2006 allowed the review application filed by the respondents-IFFCO, which sought review/ recall of the order dated 19-5-2006, which recalled the earlier order dated 24-2-2006. By the earliest mentioned order dated 24-2-2006, the main Arbitration Application bearing No. 41 of 2002 filed by the applicant herein was rejected by the learned Chief justice. The order dated 19-5-2006 had reviewed this order of 24-2-2006 and appointed a retired Judge of this Court, Hon'ble shri Justice Giridhar Malviya, as an Arbitrator. The order dated 22-9-2006 recalled this order dated 19-5-2006. Consequently, the main Arbitration Application No. 41 of 2002 to appoint an arbitrator stood rejected. By the present application, this order of 22-9-2006 is sought to be recalled. All the three orders are passed by the then Chief Justice hon'ble A. N. Ray, C. J. All the three orders are subsequent to the Judgment of the Apex court in SBP and Co. v. Patel Engineering Ltd. , decided on 26-10-2005, reported in (2005)8 SCC 618 : AIR 2006 SC 450.

(2.) THE main ground of the present application dated 12-12-2006, seeking review of the order dated 22-9-2006, is that under the prior order dated 19-5-2006, an Arbitrator had already been appointed and had started functioning and, therefore, the order dated 22-9-2006 reviewing the order dated 19-5-2006 appointing an Arbitrator was not called for. As against this, the submission of the respondents is that although an Arbitraton was appointed under the order dated 19-8-2006, he had not started functioning and that the order dated 19-5-2006 appointing an Arbitrator was passed on the first date of hearing without affording an opportunity to the respondents. The applicant's application for recall dated 24-3-2006 (seeking recall of order dated 24-2-2006) was based on two letters of the respondents dated 1-7-1998 and 30-11-2001 and particularly the latter one, to save limitation since the letters were supposed to have stated that the respondents were processing the bills of applicants. The Arbitration Application No. 41 of 2002 filed by the applicants is basically to seek an arbitration into their monetary claim against the respondents, which the respondents are contending to be hopelessly time barred. The respondents contend that they were not given any opportunity to controvert the contents of these two letters. According to them, the second lettter dated 30-11-2001 supposed to be from the respondents was a foreged document and they had not written any such letter. It was the case of the respondents that the order dated 19-5-2006 was not called for inasmuch as that was on an application, which sought review of the order dated 24-2-2006, which after hearing the parties had held the claim to be time barred. Thus, whereas according to the respondents, the order dated 19-5-2006 was not called for, according to the applicant initial order dated 24-2-2006 and the third order dated 22-9-2006 were not called for.

(3.) NOW before we look to the various orders passed by the then Hon'ble Chief Justice, we may first look to the main Arbitration Application No. 41 of 2002, to understand as to what was the claim therein. If we look to the prayer clause of this Arbitration Application along with contents of paragraph 3 thereof, five claims were sought to be referred for arbitration. They were as follows :-1. Claim for Rs. 2,23,834. 00 which was stated to be due from 1-7-1988. 2. Claim for Rs. 1,24,716. 00 due from 25-12-1985. 3. Claim for Rs. 28,81,381. 00 due under the work order dated 21-1-1984. 4. Claim for Rs, 6,20,158. 00 due under the contract of 3-1-1991. 5. Claim for Rs. 1,35,407. 00 under the work order dated 18-4-1993 due from 30-5-1996,