GMTD BSNL Srinagar and another vs M/s P. S. Associates

Impugned are execution and order dated 21st January 2013, passed by learned Principal District Judge, Srinagar (for short ""Executing Court""),

on the strength of grounds urged by petitioners in instant revision.

The case of petitioner BSNL, Srinagar, is that they purchased computer hardware and software, vide open tender on two occasions vide tender

dated 6th May 2005 and 6th June 2006 and both times, petitioner-BSNL awarded tender in favour of M/s P. S. Associates (respondent herein).

Supplies were made and payments given for both tenders. In terms of tender, after one year of warranty period, Annual Maintenance Contract

(AMC) was to be signed for three years vis-a-vis both tendereditems. AMCs were entered into. It was later on seen that AMC-1 PO was issued

only for one year and it was never renewed. BSNL continued to get AMC service for the items purchased in first tender, though, BSNL

complained about poor performance of AMC. The payment of AMC was to be done after every six months as per terms and conditions. The

payment for first six months period for AMC-1 was only made by petitioner BSNL of Rs.2,89,543/- on 5th April 2008, without imposing and

deducting any penalty.

The dispute arose between the parties. Arbitrator was appointed vide letter no.1-12/2010- CIT dated 19th August 2010 to settle the dispute

between the parties. Arbitrator rendered the Award on 18th July 2011.

Respondent herein filed an application for execution of Award dated 18th July 2011, passed by Sole Arbitrator, before learned for short

Executing Court. Objections thereto were filed by petitioner BSNL. Learned Executing Court, vide order dated 21st January 2013, directed

petitioner BSNL to release payment of application minus leftover items within a period of two weeks. It is this order, of which petitioner BSNL is

aggrieved and seek setting aside thereof.

I have heard learned counsel for parties at length. I have gone through the record and considered the matter.

Learned counsel for petitioner BSNL states that Executing Court has proceeded with material irregularity while passing impugned order and

executing court has gone beyond the scope of award and that executing court had to execute the award strictly according to the terms and

conditions contained therein. The executing court, according to learned counsel, cannot sit over the Award of Arbitrator as an appellate court and

pass directions contrary to those as contained in award. Learned counsel also avers that though arbitrator has overruled covenants of agreement

entered into between parties in tender-1 and tender-02, which was beyond his jurisdiction because he was deriving powers from the same and had

not taken into account the loss suffered by petitioner BSNL and inconvenience suffered at the hands respondent and has in contravention to terms

and conditions of agreement directed petitioner BSNL to impose lesser penalty and that the said direction has attained finality and petitioner BSNL

is subject to its acceptance, but despite that the learned executing court has not even considered or made a mention in the order impugned about

the items falling in annexure-5 of the Award and the penalty accruing on that behalf. To cement his arguments, learned counsel relies upon

decisions in Rameshwar Dass Gupta v. State of U.P. & anr (AIR 1997 SC 410); Joquim Joao Fernandes v. Nazrio Pinto (2006 (2) BomCR

746).

By way of contrast, learned counsel for respondent stoutly avers that civil revision petition, given amendment to Section 115, CPC, is liable to

be dismissed as the impugned order is not amenable to revisional jurisdiction. He in support of his submissions also relies upon judgement dated

2nd September 2014 passed by High Court of Judicature at Madras in Ms. G v. ISG Novasoft Technologies Ltd; judgement dated 20th March

2009 passed by Supreme Court of India in M/s Century Textiles v. Deepak Jain and another. The judgements, relied upon by learned counsel for

parties, are distinguishable from the peculiar facts and circumstances of the present case. Suffice is the record of court below to deal with the

matter.

Perusal of record reveals that respondent made a statement before learned Executing Court on 4th July 2012, that in pursuance of arbitration

award he had replaced the faulty equipments with petitioner BSNL and obtained a receipt with regard to the same and that he had to replace

equipments, i.e. three monitors, 19 UPS, 4 Desktop monitors and one monitor, which, according to him, were not available in the market as the

technology had become obsolete and that he had given full authority to petitioner BSNL to purchase said items from market and deduct cost

whereof from his total bill, but before making deductions, the details of said items, which are outstanding against respondent, be sent by petitioner

BSNL. In view of statement of respondent, learned Executing Court gave option to petitioner BSNL to purchase items on its own, which are

outstanding against respondent from market and the bills be submitted before Executing Court on next date of hearing and deduct the amount of

purchased items from outstanding amount of respondent and to release remaining amount in favour of respondent.

After various hearings, learned Executing Court, as is discernible from the record, vide order dated 27th November 2012 observed that despite

the award passed by Arbitrator as back as on 18th July 2011, the payment to respondent was not being made and that petitioner BSNL was time

and again asked to release the payment in faovur of respondent minus the payment of item shown at serial no.7 APC/UPS 19 numbers as also 03

numbers of monitors. The order dated 27th November 2012 also reveals that learned counsel for respondent stated before the learned Executing

Court that the item no.7, APC/UPS, of the same brand, was not available in the market, which is an admitted fact known to petitioner BSNL as

well and had become obsolete and insofar as 03 numbers of monitors were concerned, the respondent undertook to return the monitors within two

days. The Executing Court directed that before ordering payment due to respondent/ decree holder, the respondent would approach concerned

DE Computers who would calculate the penalty in terms of the Award positively within a period of one week and submit compliance report

regarding payments due and deposit the same before the Executing Court and that in case DE Computers is not in a position to resolve the matter

and submit the report by next date of hearing, to which learned counsel for petitioner BSNL stated that bills had not been submitted to the

concerned quarters as had been reflected by Arbitrator in his Award. To this learned Executing Court, observed that the record available before it

reveals that bills had already been submitted and the copy of the bills was also available on the record, which were handed over to representative

of petitioner BSNL. If one goes by the said order, it can safely be said that learned Executing Court has appropriately rather minutely and

carefully, proceeded in the matter, so as to resolve the matter once for all.

While having glance of order dated 21st January 2013, it comes to fore that same averments and grounds had been taken by petitioner BSNL

as have been taken by it in the revision petition in hand. It would be advantageous to reproduce appropriate portion of impugned order hereunder:

The award dated 18/7/2011 in clause 2 contained certain conditions to be complied with by the parties and it appears that first condition i.e.

payment of Rs.1,25,000/- in favour of the applicant was fulfilled after the execution application was filed before this court. It took the non-

applicants more than seven months to file their objections to the application and then seek the dismissal of the application on the ground that the

grievances of the applicant stood redressed as the payment of 1,25,000/- had been made to the applicant. Subsequent to the filing of objections,

the conduct of the non-applicants again remained hostile which constrained this court to pass various directions for release of the payment in terms

of the award and even in terms of the order dated 4/7/2012, the non-applicants were given liberty to purchase the left over item themselves from

the market and deduct the amount of the purchased item from the outstanding amount of decree holder and release the remaining amount in his

favour, which order was also not complied with. At a later stage, the non-applicants counsel made a statement that since the bills have not been

submitted to the concerned as reflected by the Arbitrator in his award. Though the bills as per record had already been submitted, the ld. Counsel

was again furnished copies of the same in the open court.

Simple perusal of the objections filed in opposition to this application reveals that some items have been left over and mention of those items has

been made in the objections but that would not ordinarily dis-entitle the decree holder to claim the payment of remaining bills even if the actual cost

of those items is deducted from the final payment as a penalty in terms of the award imposed upon the applicant.

The above excerpt of impugned order discloses what petitioner BSNL has been shirking to say and submit here. Learned Executing Court has

given all options to petitioner BSNL, according to notions of petitioner BSNL, so that the controversy sets at rest. Learned Executing Court has

rightly observed that it took petitioner seven months to file objections to the application and thereafter despite having received bills from

respondent, petitioner BSNL made statement before learned Executing Court that they did not receive bills from respondent and to this learned

Executing Court again furnished copies of the bills in the open court, but petitioner BSNL remained antagonistic. Petitioner BSNL cannot run off

from its responsibility.

Looking from all angles, revision petition is devoid of any merit. Accordingly, the petition is dismissed along with connected MP(s). Interim

direction(s) shall stand vacated.

Record be sent down. Copy of this order be also transmitted to court below.