PR ENGLISH SHORTHAND DICTATIONS: ENGLISH SHORTHAND DICTATION-410

The learned counsel for the appellant invited our attention to the fact that the decision in the case of Madhya Pradesh Rural Road Development Authority was rendered nearly four years after the date of the award. However, in paragraph 17 of the said decision, this Court observed that if an award is already made by the Arbitrator and if the objection to the jurisdiction of the Arbitrator was not raised at an appropriate stage, the award may not be annulled only on that ground. The learned counsel submitted that the respondents did not challenge the order passed by the High¹⁰⁰ Court under Section 11(6) of the Arbitration Act. The objection regarding the jurisdiction of the arbitration was raised only in¹²⁰ the written submissions. He would, therefore, submit that the award could not have been set aside based on the decision of this Court.

The learned counsel for the respondents submitted that, as seen from the award, a contention was raised in the written statement filed before the Arbitrator that the appellant should have taken recourse to Section 7 of the 1983 Act. Therefore, the dispute was raised at the appropriate stage, and hence, paragraph 17 of the decision in the²⁰⁰ case of Madhya Pradesh Rural Road Development Authority will have no application.

A few factual aspects will have to be noted. After the contract granted to the appellant was rescinded, the appellant invoked Section 7 of the 1983 Act by²⁴⁰ approaching the Arbitration Tribunal. By the order dated 19th April 2010, the Arbitration Tribunal held that in view of the arbitration clause in the contract, the 1983 Act will have no application and the appellant will have to take recourse to the Arbitration Act.

In view of this order, the appellant invoked the jurisdiction of the High Court under Section³⁰⁰ 11(6) of the Arbitration Act by filing a petition for the appointment of an Arbitrator. The order dated 22nd July 2011 passed by the High Court on the said petition shows that the respondents' opposition was only on the merits of the claim. The objection based on the applicability of the 1983 Act was not raised.

The respondents did not³⁶⁰ challenge the order of appointment of the Arbitrator passed by the High Court under Section 11(6) of the Arbitration Act. Even before the learned Arbitrator, Section 16(1) of the Arbitration Act was not invoked to raise the jurisdiction issue. However,⁴⁰⁰ in the written statement filed before the Arbitrator, the contention regarding the applicability of the 1983 Act was raised.

Now, coming to the decision of this Court in the case of Madhya Pradesh Rural Road Development Authority, after considering the provisions of the 1983 Act and the Arbitration Act, in the light of Section 2(4) of the Arbitration Act, this Court held that although there was an arbitration clause, the 1983 Act would apply. As noted earlier, in the facts⁴⁸⁰ of the case, before taking recourse to the Arbitration Act, the appellant had taken recourse to Section 7 of the⁵⁰⁰ 1983 Act. The order of the Arbitration Tribunal, holding that the Arbitration Act will apply, led the appellant to file a petition under Section 11(6) of the Arbitration Act, which was not objected to on the grounds of the applicability of the 1983 Act. The objection of the State government was confined to the merits of the claim.

The award is only in the sum of Rs. 6,50,000/- with interest. The award was made on 25th April 2014. Therefore, in the facts of the case, it will be unjust to set aside the award only on the ground of the⁶⁰⁰ failure of the appellant to take recourse to the 1983 Act. In fact, the appellant had taken recourse to the 1983 Act before seeking the appointment of an Arbitrator. In this case, as can be seen from the impugned judgment, the award has been set aside only on the ground that the appellant ought to have invoked the provisions of the 1983 Act.

Even assuming that the observations in paragraph 17 of the decision in the case of Madhya Pradesh Rural Road Development Authority, are not applicable, this is a fit case to exercise jurisdiction under Article 142 of the⁷⁰⁰ Constitution of India to ensure that complete justice is done. Therefore, by setting aside the impugned judgment, the appeal under⁷²⁰ Section 37 of the Arbitration Act will have to be restored with a request to the High Court to decide the same on merits.

Accordingly, the impugned judgment dated 12th May 2022 passed in the Review Petition no.584 of 2021, and the order dated 5th July 2021 passed in the Arbitration Appeal no.45 of 2019 are set aside. The Arbitration Appeal no.45 of 2019 is restored to the file of the High Court of Madhya Pradesh, Principal Seat at Jabalpur.⁸⁰⁰ The restored appeal shall be listed before the roster bench on Monday, the 30th September 2024. The parties to the appeal shall appear before the High Court on that day, and no further notice of the date fixed in the⁸⁴⁰ appeal shall be given to the parties. On 30th September 2024, the High Court will fix a date for hearing the restored appeal, which shall be heard and decided in accordance with law and in light of the observations made in this judgment. All the issues on the merits of the restored appeal under Section 37 of the Arbitration Act⁹⁰⁰ are kept open. However, the award should not be set aside on the grounds of the applicability of the 1983 Act.

If the appellant has withdrawn the amount paid as per the award, the same shall be deposited by the appellant with the High Court within two months from today. The amount shall be invested by the High Court in⁹⁶⁰ a fixed deposit with any nationalised bank till the disposal of the restored appeal. The High Court, while deciding the appeal, shall pass appropriate directions regarding the withdrawal of the amount with interest accrued thereon.⁹⁹⁵