The court dismissed the appeals, holding that despite the appellant's argument regarding the non-service of the arbitral award and the time-bar objection, the appeals lacked merit and were disposed of with dismissal.
The appeals were dismissed with no merit found.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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72 SCC 7O4 has held that when aperson againstwhoman exparte decree is passedpresses for setting aside the expartedecree, the condition imposed must not be unnecessarilyonerous, unreasonableor excessively harsh. In Tea Auction Ltd, case, theSupreme Court held the direction to deposit the entire suit amount as harsh. Similaris the view in the case of Vijay Kumar Madan and OthersVs. R.ru, Gupta Technical Education Society and Others(2OO2) 5SCC 3O in which it is stated that the defendant by seeking setting aside of anexparte order could not end up to a worseposition than if he had not filedan application for .setting aside the exparte proceedings. lt was also held that the order setting aside exparte order should not have aneffect of pre-judging controversy or practically decreeing the suit. Thus in myopinion, direction to the respondent to deposit 50o/o of the arbitrationclaim amount would amount to an unnecessarily harsh/stringentdirectionhaving the effectof preventing the respondent from contesting the proceedings.
FAO Nos.397/2O7O & 392/2O7O
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same, the appellant was bound to file an application before the trial Court bringing to its notice the fact that this issue was not decided. lt has been held by the Supreme Court consistently right from the decision in the case of State of Maharashtra Vs. Ramdas Srinivas Naik(L982) 2 SCC 463 that what is recorded in an order of the trial Court cannotbe challenged by means of filing an affidavit in an appeal. lf there is anyfact which has not been correctly recorded by the trial Court in ajudgment, it is necessary for the aggrieved party in such a case to immediately move an application before the same Court when the matter is fresh in themind of the Jucige bringing to its notice the fact, however, if not so donethe matter must necessarily rest there. ln my opinion, thisprinciple willalso apply when the appellant alleges to claim that a very importantpoint of limitation was argued but not decided by the trial Court. The appellant,in my opinion, therefore ought to have approached the trial Courtby means of a review application or an application for recall of the impugned judgment, and which admittedly has not been done and thus it must be held that this point wasgiven up before the trial Court.
To satisfy myjudicial conscience, I however went throughthe arbitration record. lt appears that the appellant is raising anobjection without even looking at the record because the arbitration recordshotrys that the Award which was sent to the respondent was receivedback
FAO Nos.397/2O7O & 392/2O7O
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unserved. Thus there is no service ofthe Award on the respondent.In such circumstances, theprovision of limitationcannot be unduly harshly read against the respondent to denyhim the valuableright of filing objections under Section 34 of the Act.
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AUGUST 04,?OLL Ne'
FAO Nos.397/2O7O & 392/2O7O
lr-. n V 6Jt*,nlt'tr'tt14nVALMtKl J. MEHTA, J.
page 4 of 4
3 issues framed by the court
Whether time-bar prevents the respondent from filing objections to the arbitral award under Section 34 when the award was not served due to list failure.
Whether the failure to raise the limitation point before the trial court in applications for recall or review bars its consideration in the present appeal.
Whether a favourably sounding order acknowledged by the trial court but later discarded by the appellate counsel can be sustained.
Colour shows how this judgement treated each authority
72 SCC 7O4Referred¶5
Tea Auction Ltd, caseReferred¶5
Vijay Kumar Madan and Others vs. R.ru, Gupta Technical Education Society and OthersReferred¶5
Vijay Kumar Madan and Others Vs. R.ru, Gupta Technical Education Society and Others (2OO2) 5 SCC 3O
State of Maharashtra vs. Ramdas Srinivas NaikApplied¶6
State of Maharashtra Vs. Ramdas Srinivas Naik (L982) 2 SCC 463
2 provisions across 2 enactments
The Appellant
The Respondent
V.M. Tathagata Nath J.
Justice Mehta, J.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
