MANMOHAN KEDIA Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition the petitioner has challenged the certificate of public demand under Sections 4 and 6 of the Bengal Public Demands Recovery Act, 1913 (hereinafter referred to as "1913 Act") in connection with Revenue Recovery Certificate Case No. 01/OP/10-11 and the notice under Section 6 of the Revenue Recovery Act, 1890 ('1890 Act' for short) both dated 12th July, 2011 issued by the Collector, South 24-Parganas, the respondent No.3, seeking to enforce an arbitral award passed under the Arbitration and Conciliation Act, 1996 (for short "1996 Act") on the ground that as Section 36 of the 1996 Act provides for execution of an award through civil process as enumerated in the Code of Civil Procedure, 1908, initiation of proceedings under 1913 Act and 1890 Act are without jurisdiction and illegal.

(2.) Before dealing with the issue, it is necessary to deal with the facts in brief. It has been stated that the petitioner was successful in a tender floated by the Rail Coach Factory, Kapurthala and consequently the General Manager and the Controller of Stores, the respondent Nos. 1 and 2 of the said factory issued a purchase order. As there was hike in the excise duty, the petitioner requested for enhancement of the quoted price. However, it was not acceded to by the respondent Nos.1 and 2 and purchase order was cancelled. Statement is in view of the contract entered into in writing between the petitioner and the respondent No.2 under the 1996 Act, the petitioner had invoked the arbitration clause claiming a sum of Rs. 9,92,125/-. Thereafter, arbitration proceedings were initiated and on 27th September, 1999 an arbitral award was passed by the Chief Engineer (Sole-Arbitrator), Rail Coach Factory, Kapurthala directing award for recovery of risk- purchase which was limited to 3,25,000/- to be paid by 31 st December, 1999 failing which it was directed that the award would carry an interest at the rate of 1% per month or part of month till payments were made. Aggrieved and dissatisfied with the arbitral award which was received at Kolkata, the petitioner preferred an application praying for setting aside the said award under Section 34 of the 1996 Act. The said application was registered as Misc. Case No. 9515 of 1999 in the Court of the learned Judge, 12th Bench, City Civil Court at Calcutta. By an order dated 6th August, 2002 the said application was dismissed. Aggrieved the petitioner preferred statutory appeal under Section 37 of the 1996 Act before the High Court at Calcutta being F.A.T. No. 3480 of 2002, which is still pending. Thereafter, the petitioners received the certificate of public demand under the 1913 Act as well as notice under Section 6 of the 1890 Act both dated 12th July, 2011 issued by the respondent No.3. On 25th July, 2011 the petitioner entered appearance before the Certificate Officer and filed objection under Section 9 of the 1913 Act denying liability and prayed for setting aside the said matter. According to the petitioner, as respondent Nos. 1 and 2 have submitted themselves to the jurisdiction under the 1996 Act pursuant to an agreement in writing, the said respondents cannot resort to recovery of arbitral award by invoking the provisions under the 1890 Act.

(3.) In order to decide the issue it is necessary to refer Section 36 of the 1996 Act which is as under:-