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Judgment
Augustine George Masih, J.
C.M.A. No. 165 of 2009
Prayer in this application is for condonation of delay of 122 days in refilling of the appeal. The reason assigned for delay in refilling of the appeal is that the clerk of the counsel received the appeal from the registry branch where certain objections were raised and inadvertently, the same was misplaced in the office of the counsel as there was whitewash work in progress. With due efforts, the file was traced and the same was refiled after removing the objections, which resulted in delay of 122 days in refiling of the appeal. The application is supported by an affidavit.
For the reasons mentioned in the application, the same is allowed. Delay in refiling the appeal stands condoned.
C.M.A. No. 166 of 2009
Prayer in this application is for condonation of delay of 24 days in filing the appeal.
The reason assigned for the delay is that the appellant was under a wrong impression that the limitation for filing the present appeal is 90 days, which has resulted in delay of 24 days in filing the same. The delay in filing the appeal is unintentional and due to bona-fide mistake on the part of the appellant. The application is supported by an affidavit.
For the reasons mentioned in the application, the same is allowed and the delay in filing the appeal is condoned.
C.M.A. No. 167 of 2009 and Company Appeal No. 44 of 2009
The present appeal has been preferred by the appellant assailing the order passed by the Company Judge dated 19.03.2009, wherein objections of the appellant have been rejected by the impugned order.
It is the contention of the counsel for the appellant-Dakshin Haryana Bijli Vitran Nigam Limited that the award passed by the Arbitrator, which has been made the Rule of the Court, is not sustainable in the light of the fact that on the date, on which the said award has been made the Rule of the Court, the order of liquidation has already been passed of the company. It has further been stated that the Arbitrator has exceeded his jurisdiction and adjudicated upon the energy charges, which were not part of the arbitration, and passed an award observing that the respondents shall pay a sum of Rs. 4,00,000/- to the appellant to end the dispute, which has been lingering on since 1979. The appellant, therefore, was assailing the order passed by the Arbitrator before the Company Court.
On 08.04.2008, the Official Liquidator submitted his report with regard to various claims of the secured as well as unsecured creditors after holding a meeting with the representatives and their counsel and has upheld the award given by the Arbitrator by awarding Rs. 6.61 lacs against the actual claim of Rs. 85,20,844/- raised by the appellant. The learned Company Judge had proceeded to accept the claim, as reported by the Official Liquidator in his report dated 08.04.2008 and rejected the objections vide the impugned judgment, which is not sustainable. She, on this basis, contends that the impugned order cannot sustain and deserves to be set aside as the appellant was entitled to the claimed amount of Rs. 85,20,844/-.
We have considered the submissions made by the counsel for the appellant and have gone through the order passed by the learned Company Judge.
A perusal of the same would show that a dispute arose between the appellant and the respondent-Company on the electricity dues as respondent-Company did not pay for energy regularly, which resulted in huge arrears. On 31.05.1985, since the company did not pay energy charges regularly, electricity connection was disconnected. The appellant thus, became the creditor and the respondent-Company the debtor. The respondent-Company filed CWP No. 492 of 1983 in this Court challenging disconnection, which was dismissed by this Court on 09.05.1983, against which SLP No. 8551 of 1983 was preferred, which was dismissed as withdrawn vide order dated 22.08.1986 passed by the Supreme Court.
After withdrawing the said SLP, the respondent-company filed a claim under the arbitration clause of the agreement. Sh. O.P. Puri was appointed the sole arbitrator where the reference was adjudicated upon and an award was passed by the sole arbitrator holding therein that the demand charges payable to the appellant by the respondent-company was 10.4 lacs and the net payable amount, after considering all energy charges, came to Rs. 6.4 lacs. This award of the Arbitrator was not accepted by the appellant and they filed objections against the award dated 02.03.1987 in the Court of Sr. Sub Judge, Faridabad, vide their objection petition dated 31.03.1987, which was dismissed and the award of the Arbitrator was made the Rule of the Court. An appeal was preferred against the said order before the learned Additional District Judge where claim of the appellant was allowed to the extent of Rs. 10.4 lacs. However, this order of the learned Additional District Judge was passed after the passing of the order of winding up by this Court in C.P. No. 31 of 1995 on 24.02.1995 and the Official Liquidator attached to the Court was appointed as the Liquidator of the respondent-company.
Thereafter, the appellant approached the Official Liquidator for re-adjudication of his claim. The Official Liquidator did not consider the order passed by the Additional District Judge and restored the amount of award passed by the Arbitrator as made the Rule of the Court by the Sr. Sub Judge, Faridabad vide order dated 31.03.1987 on the ground that the order passed by the Additional District Judge was subsequent to the order of winding up passed by this Court.
Against this, the appellants preferred C.A. No. 400 of 2008, where a grievance has been made that the claim of energy charges has been rejected by the Official Liquidator wrongly. What has been contended is that the award of the Arbitrator is not sustainable as the energy charges itself was not a point of dispute and, therefore, the Arbitrator could not have passed an award for the same.
This aspect has been dealt with by the learned Company Judge in the impugned order and has observed that the issue of energy charges itself was never in dispute and not made a subject of adjudication before the Arbitration Tribunal. If that is so, then the claim towards electricity charges could not be a part of the claim either before the Arbitrator or could be made it the subject of challenge before the Senior Sub Judge, before whom the award was challenged or before the District Judge, where the appeal was preferred. It would, thus, be impermissible for the Electricity Board to contend that the Arbitrator could have passed an award for the energy charges. On this basis and keeping in view the winding up order passed by this Court and prior to the passing of the order by the Additional District Judge in the appeal preferred by the appellant, the amount awarded by the Arbitrator amounting to Rs. 6.61 lacs, which has been affirmed in the report of the Official Liquidator determining the claim of the appellant, has been upheld. An observation has also been made that any observation either in the Arbitrator''s award or in the successive tiers of adjudicatory bodies relating to energy charges would stand vacated. Liberty has also been granted to the appellant if it has an independent claim to make with reference to energy charges, it may resort to such action if admissible in law. The amount of Rs. 6.61 lacs, as determined by the Award and adjudicated before the Official Liquidator, is to be paid as constituting the demand charges lawfully payable by the company, which includes interest up to the date of the order of winding up.
We do not find any illegality in the order passed by the learned Company Judge, which would call for any interference in the appeal.
The appeal, therefore, stands dismissed. Accordingly the Company Application i.e. C.M.A. No. 167 of 2009 stands dismissed in the light of the above order.