Union of India vs Bhattacharjee Constructions Ltd.

Mookerjee, C.J.—The short point in this Revisional Application is whether or not the learned Assistant District Judge, Siliguri had any jurisdiction to expunge one particular sentence appearing in his judgment pronounced upon an arbitration award and also the decree which followed. M/s. Bhattacharjee Construction Ltd., the opposite party herein, had entered with the petitioner, Union of India, into a contract relating to construction of married accommodation for military personnel at Khaprall. Certain differences and disputes having arisen between the said parties, the same was referred to arbitration by Major General Gurbir Mansingh, Chief Technical Examiner, Military Engineering Services, Army Head Quarters, New Delhi. On 7th February, 1983 the said Arbitrator had made and published his final award concerning the matters referred to him. While he allowed some claims of the said Contractor either in full or in part, he had rejected some others. The order of the learned Arbitrator is as follows:

The respondents shall pay to the claimants a sum of. Rs. 890090/-(Rs. eight lakas ninety thousand only) as full and final settlement of all the disputes referred to me. On this amount a sum of Rs. 480000/- (Rs. four lakhs eight thousand only) will be paid immediately and the balance amount of Rs. 410000/- (Rs. four lakhs and ten thousand only) will be paid along with the final bill on completion of the work. The cost of the stamp paper fees amounting to Rs. 75/- (Rs. seventy five only) shall be borne by the respondents.

The opposite party Contractor had filed an application u/s 14(2) of the arbitration Act before the Court of the learned Assistant District Judge, Siliguri and pursuant to the directions of the court the said award was filed. Thereupon, notices were issued upon the parties.

The present petitioner had filed in the court below a petition under sections 16, 30 and 33 of the Arbitration Act praying for setting aside the award or for remitting the same for fresh decision. The present opposite party had also filed a petition for modifying the award and for passing a decree making the said award a Rule of the Court. The learned Assistant District Judge by his judgment and Order No. 38 dated 28th June, 1985 had disposed of the said objections and petitions of the two parties and also had purported to pronounce his judgment upon the said award which was made part of the decree and the rule of the court. Both the ordering portion of the said judgment and the decree inter-alia contained the following words:

The plaintiffs are hereby directed to take steps for completion of incomplete works for entitling them to get remaining Rs. 410000/- (Rs. four lakhs ten thousand only) only payable after completion of the work.

Neither the petitioner Union of India nor the opposite party the said Contractor firm had preferred any appeal against the said judgment and decree passed by the learned Assistant District Judge, Siliguri. The opposite party Contractor, however, supported to file in the Court of the Assistant District Judge an application u/s 151 read with section 152 of the CPC for amendment of or correction by way of deletion of the aforesaid direction for completion of incomplete work etc. After hearing both parties, the learned Assistant District Judge, Siliguri has allowed the said application by expunging the above sentence from his judgment and also from the decree following it. Being aggrieved, by the said order, the Union of India, has filed the present Revisional Application. Mr. Das, learned advocate on behalf of the petitioner, Union of India, has submitted that the learned assistant District Judge, Siliguri had no jurisdiction to expunge the said sentence from his judgment and decree. In case the said judgment and the decree were, in excess of or not otherwise in accordance with the award, the opposite party''s only remedy was by way of preferring an appeal from the said judgment and decree. But the opposite party had allowed its said right of appeal to have become barred by limitation and, on the other hand, it accepted the judgment and decree by receiving payment of the first of the two sums allowed in its favour under the said judgment and decree.

We are unable to give any countenence to the above submission made on behalf of the petitioner, Union of India. According to last part of section 17 of the arbitration Act, "no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with the award". These words are indicative of the limited grounds upon which appeal may be preferred against a decree which follows a judgment pronounced according to an award filed in court. Grounds of an appeal must be confined to those indicated in section 17 of the arbitration Act. But those words in section 17 of the Arbitration Act in no way curtail the powers of the court which pronounced such judgment and decree to amend or vary its judgment and decree in accordance with the provisions of the CPC which have been made applicable subject to the Arbitration Act and the Rules made u/s 41 of the said Act. The Arbitration Act and the Rules made thereunder do not deprive the court of its inherent powers u/s 151 of the Code read with Section 41 of the Arbitration Act (in this connection see Vishnu Agencies (P) Ltd. and Others Vs. Sriram Sahakari Grih Nirman Samity Ltd. and Others, ). We are also inclined to think that the court which pronounced judgment and decree upon an award also possesses power to review its judgment and decree provided the appropriate grounds are made out. There is also a long catena of judicial decisions which have upheld the High Court''s power u/s 115 of the CPC to correct errors of jurisdiction in a judgment end decree passed upon an arbitration award (see Brojendra Kumar Pal and Another Vs. Purna Chandra Pal and Another, , Ramaswami Chettiar Vs. Venkatarama Aiyar and Others, , Pyare Lal and Others Vs. Dwarka Prasad, , Ganesh Chandra Misra Vs. Artatrana Misra and Others, ).

Viewed in this light we are bound to uphold the trial court''s order expunging the aforesaid words from his judgment and decree. We have already quoted the ordering portion of the learned Arbitration under which the opposite party was awarded a sum of Rs. 890000/-as full and final settlement of the disputes referred to him. Of this amount, a sum of Rs. 480000/- was immediately payable and the balance Rs. 410000/- was to be paid along with the final bill on completion of the work. Whether or not the opposite party contractor ought to, be allowed or directed to complete the incomplete works was not part of the reference to the learned arbitrator and the learned arbitrator did not direct in his award the Contractor opposite party to take steps for completion of incomplete works, after the award was filed in court, in his order dated 28th June, 1985, the learned Assistant District Judge had over-ruled the objection of the Union of India that the award did not provide as to what was to be done in respect of the balance sum of Rs. 410000/- payable to the Contractor after completion of the works if the Contractor did not complete the work at all. In the body of his judgment and order dated 28th June, 1985, the learned Assistant District Judge, Siliguri very pertinently pointed out that the contract between the parties itself provided to meet such circumstances and the contract also provided the Union of India with the means of realising the amount on such occasion from the Contractor. The learned Assistant District Judge also pointed out that the question of completion or non-completion of the work by the plaintiff Contractor was something that went beyond the purview of the dispute and the difference referred to the learned Arbitrator. After the said apprehension came true, same would be occurring after 31st March, 1981 up to which date dispute between the parties had been referred to the learned Arbitrator. The learned Assistant District Judge had refused the prayer of the Union of India for remitting the award and had also rejected the prayer of the Contractor for modifying the award. In the above view, the judgment of the learned Assistant District Judge dated 28th June, 1985 ought to have been pronounced strictly in terms of the award and the decree ought to have been allowed on the same terms. The learned assistant District Judge had no jurisdiction to include in the ordering portion of his judgment or in the decree any direction beyond the terms of the award in question. The award itself did not contain any direction or order for completion of the incomplete works and the learned Judge himself had refused either to set aside or to remit back the award for incorporating directions for completion of incomplete works, we must hold that directions in the ordering portion of the judgment and the decree upon the plaintiffs to take steps, for completion of incomplete works were null and void. In view of the findings made in the body of his judgment that the award did not contain any direction or order for completion of incomplete works, the directions given by the learned Assistant District Judge in the ordering portion of his judgment and in the decree drawn up were inconsistent with his own judgment also void.

The provisions relating to limited scope of appeal against the judgment and decree passed u/s 17 of the Arbitration Act does not further curtail the inherent power of the court which passed the said judgment and decree to delete a direction contained therein which is both a surplusage and totally void. Bachawat, (as he then was) in the case of Ganeshmal Bhawarlal Vs. Kesoram Cotton Mills Ltd., at page 358 held that although Order 9 Rule 13 of the Code in terms was not applicable to arbitration proceedings, the principles of the said provision should be followed to set aside a judgment and decree which was passed without duly giving notice of the filing of the award or without allowing time for applying to set aside the award. We respectfully agree with the observations of the learned Judge that the court has also inherent power to recall the previous order or decree if it is without jurisdiction. At no stage of his submission Mr. Das, learned advocate appearing on behalf of the petitioner, Union of India, contended that the directions in the ordering portion of the judgment and decree upon the plaintiff (meaning the Contractor) to take steps for completion of incomplete works were in accordance with an award or that the same had formed part of the reference to the Arbitrator. There is no substance in his submission that only because the opposite party Contractor did not prefer any appeal against the judgment and decree, he was not entitled to apply before the trial court for expunging the said totally void directions for taking steps to complete the incomplete works of construction. If this technical objection was upheld and the opposite party is relegated to pursue his remedy by way of appeal, there would be unnecessary proliferation of proceedings. Time for preferring appeal from the judgment and decree in question having expired, question of condoning delay would arise. In case the delay is condoned, the appeal would be heard on merits. When we are convinced that the directions in the judgment and the decree upon the plaintiff to take steps for completion of incomplete works were void ab initio, we cannot ask the plaintiff opposite party to adopt a round-about method for expunging the said directions. We had also pointed out that even in case had upheld the technical objection of the petitioner, Union of India, taken in this Revisional Application against expunging the said directions, this court could have suo motu invoked its revisional powers to expunge from the judgment and decree of the trial court, the said null and void directions. But we have already held that the trial court itself had inherent jurisdiction to expunge the same.

For the forgoing reasons, we dismiss this Revisional Application. There will be no order as to costs.

A.C. Sengupta, J.

I agree.