HINDUSTAN CONSTRUCTION COMPANY LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE facts giving rise to this revision are as under: Hindustan Construction Company Limited, Bombay, the petitioners in this case, entered into a contract with the Union of India, the respondent, for construction of Highway Bridges over the Rivers Kaghjuri and Kaukhai in Cuttack (Orissa). Some disputes arose between the parties and the matter was referred to joint arbitration of Shri B.K. Guha and Shri N.P. Gurjar. The arbitrators above -mentioned could not come to unanimous decision as a result of which the matter was referred to Shri Dildar Hussain, Ex -Chief Engineer, Hyderabad, as an Umpire. He recorded the evidence of the parties and gave his award on 27th of May, 1961. The petitioners thereafter filed the present application under sections 14 and 17 of the Indian Arbitration Act with the request that the Umpire be asked to file the award in Court and the same may be made the rule of the Court. The award was filed by the Umpire in pursuance of the order of the Court and notice of filing the award was also served upon the parties. The Union of India raised certain objections against this award on the 1st of November, 1961. Some evidence on the objections raised by the respondents was recorded when on the 27th of August, 1962, the respondents moved another application alleging that the document filed by the Umpire purporting to be the award is not the original award but only a typed copy of the original award and, therefore, no action can be taken on that document by the Court. It was mentioned therein that the original award is not duly stamped and therefore cannot be acted upon and hence the application of the petitioners made under sections 14 and 17 of the Indian Arbitration Act should be rejected. Notice of this application was given to the petitioners who in their reply dated 3rd October, 1962, pleaded that the Umpire inadvertently or by an oversight did not send the original award to the Court but the petitioners should not suffer for it. The petitioners made another application on 3rd of October, 1962 reiterating the previous position and added that the Umpire be directed by the Court to send the original award dated 27th May, 1961, which he due to inadvertence or oversight failed to file. The respondents, Union of India, filed a reply to that application on 15th October, 1962 contesting the above plea. The question, therefore, to be decided is whether the award put in by the Umpire in Court was the original award and secondly whether under these circumstances it was incumbent or necessary for the Court below to direct the Umpire to send the original award as requested by the petitioners. In this connection it will be helpful to reproduce section 14 (2) of the Arbitration Act, which runs as under:

(2.) THE counsel for the petitioners submitted lengthy arguments and stated that this award, which was certified to be the correct copy by the Umpire himself, although on a later date, should be treated as the original award. This argument, however, cannot be accepted in view of the clear wording of section 14(2) of the Arbitration Act. The counsel for the petitioners then submitted in the Court below and also here that the Umpire should be directed by the Court, as required under section 17 of the Arbitration Act, to put in the original award in Court presuming that the Umpire still had the original award with him. The Umpire was examined in this case through interrogatories and the relevant portion of his evidence has been brought in the judgment of the Court below from which it is evident that he had no other document left with him relating to the award including the original award itself. Moreover, it is an admitted proposition of law that after an arbitrator submits his award in Court he becomes functus officio: (See Rikhabdass v. Ballabhdas : A.I.R. 1962 S.C. 551) Under the circumstances, that question now would not arise. The petitioners' counsel then submitted that copies of the original award were sent to the parties by the Umpire which have been brought on the record by the petitioners counsel and the Court therefore should have acted on the strength of that award as required under section 17 of the Arbitration Act but there is hardly any material on the record on the basis of which it could be said that the Umpire had caused the award or a signed copy of it in this case to be filed in Court as required under section 14 (2) of the Arbitration Act. (See Khumbha Mawji v. Dominion of India : A.I.R. 1953 S.C. 313). It was then submitted by the learned counsel for the petitioners in view of Khatiza Bee Bee v. Abowath, A.I.R. 1927 Rang. 127 and Nursing Chunder Dawn v. Nuffer Chunder Dull, I.L.R. 17 Cal. 832 that when the attention of the Court was drawn to irregularities in this case the Court in the exercise of its inherent jurisdiction was bound to take steps to rectify matters and the proper procedure was to start from the beginning again. The Supreme Court, however, in Rikhabdass' case 1, at page 554 has taken a different view and lays down that -