Allowed

M/S Bharat Coking Coal Limited v. Prem Kumar

Jharkhand HC10 Feb 2023Arb. Appeal/21/2011

Case brief

AI extract

What is this about?

The High Court set aside an order that set aside an arbitral award solely due to the appellant's non-appearance and lack of response under the Arbitration Act, 1940. The High Court applied Harish Chandra, relying on strict grounds for setting aside awards, and remanded the case for fresh consideration after restoring the title suit.

What did the court decide?

Impugned order dated 05.04.2011 set aside; matter remanded for fresh consideration; title suit restored; fresh hearing fixed.

M/S Bharat Coking Coal Limited Vs Prem Kumar — Arbitration | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Arbitration Appeal No.21 of 2011

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M/s Bharat Coking Coal Limited, having its Head Quarters at Koyla Bhawan, P.O. Koyla Nagar, Police Station Saraidhela, District Dhanbad through Harendra Kishore, S/o Late L.D. Sharma working for gain as H.O.D (Legal), B.C.C.L Koyla Bhawan, P.O. Koyla Nagar, P.S. Saraidhela, District Dhanbad … … Defendant/Appellant

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Versus

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Prem Kumar, resident of Luby Circular Road, Near S.S.L.N.T. College, P.O. Police Station & District Dhanbad … … Plaintiff/Respondent

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Indrajit Sinha, Advocate : Ms. Pooja Agarwal, Advocate For the Respondent : Mr. M.K. Laik, Sr. Advocate : Ms. Shridhi Priya, Advocate

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24/10.02.2023 Learned counsel for the parties are present.

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2. This appeal is directed against the judgment dated 05.04.2011 passed by learned Sub Judge V, Dhanbad in Title (Arbitration) Suit No.58 of 1994 whereby the learned court below has been pleased to set aside the award and directed the appellant to send the name of any other competent officer for appointment as Arbitrator.

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3. Learned counsel for the appellant submits that the present proceedings are guided by the Arbitration Act of 1940. He submits that the impugned order dated 05.04.2011 was passed in absence of the appellant. The sole reason for passing of the impugned order was that no response was filed by the present appellant to the petition filed under Section 30 of the Arbitration Act, 1940 seeking setting aside of the arbitral award. He submits that the learned court below has not recorded any finding with regard to the issue as to whether the award was fit to be set aside on any of the permissible grounds under the provision of Arbitration Act, 1940. He submits that unless the enumerated grounds fall within the permissible grounds for setting aside the arbitral award, the same could not have been set aside merely on the ground that no response to the petition under Section 30 of the Arbitration Act, 1940 was filed by the appellant.

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4. He has referred to the judgment passed by Hon'ble Supreme Court in the case of Harish Chandra and Company VS. State of UP reported in (2016) 9 SCC 478 to submit that the scope of interference

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in the matter of arbitral award under the provision of Arbitration Act, 1940 has been elaborately dealt with in the aforesaid judgement and merely because the appellant did not respond and did not appear on a particular day, the same by itself could not have been a reason for setting aside the arbitral award. Learned counsel for the appellant has submitted that considering the fact that learned court below has not applied its mind on the arbitral award in the light of its jurisdiction to set aside the award within the four corners of Arbitration Act, 1940, the matter may be remanded back for fresh consideration.

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5. Learned counsel for the respondent does not dispute the submissions made by the learned counsel for the appellant. He submits that in case the matter is remanded back to the learned court below for fresh consideration at least one month’s time may be granted to the respondent to appear before the learned court below and argue the case.

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6. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that in the judgment passed by Hon'ble Supreme Court in the case of Harish Chandra and Company Vs. State of UP reported in (2016) 9 SCC 478 , the scope of interference in the matter of arbitral award under the provisions of Arbitration Act, 1940 has been elaborately dealt with and summarized in para 25 and 26 of the said judgment, which are quoted as under:

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“ 25. One cannot, therefore, dispute the legal proposition, which is not fairly settled keeping in view the aforementioned law laid down by this Court that an award can be set aside only on the grounds specified in clauses (a), (b) and (c) of Section 30 of the 1940 Act and on no other grounds. Indeed this is clear from the opening words of Section 30 itself which starts with the words “An award shall not be set aside except on one or more of the following grounds”. A fortiori, a reasoned award cannot be set aside unless it falls in any of the three clauses (a), (b), and (c) of Section 30 of the 1940 Act.

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26. The grounds such as inadequacy of reasons in support of an award, error committed by the arbitrator on facts, alternate and / or more plausible view could be taken then what is taken by the arbitrator, improper appreciation of evidence done by the arbitrator in recording any finding, etc. are not the ground on which any award much less a reasoned award can be set aside. In other words, none of these grounds can be made the foundation for setting aside the award

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because they do not fall within the four corners of any of the three sub-clauses of Section 30 of the 1940 Act.” 7. From perusal of the records of the learned court below, it appears that the respondent herein had filed a petition objecting the arbitral award to be made the rule of the court and no response to the same was filed by the present appellant. It further appears that on the date when the impugned order was passed i.e. on 05.04.2011, the present appellant was absent and the learned court below has refused to make the arbitral award, the rule of the court only by recording that there was no response from the side of the present appellant. By the same order, the learned court below had also directed for providing name of Arbitrator for making fresh award.

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8. This Court is of the considered view that merely because the appellant did not appear on that particular date and also the fact that the appellant did not file any response to the petition filed by the respondent under Section 30 of the Arbitration Act, 1940, the learned court below was not justified in refusing to make the arbitral award a rule of the court without considering the grounds and passing the order in the light of the Arbitration Act, 1940, by simply recording that the appellant did not file any opposition to the petition filed under Section 30 of the Arbitration Act, 1940. This Court is of the considered view that it was incumbent upon the learned court below to apply its judicial mind on the grounds which were raised in the petition opposing the award to be made the rule of the court. Certainly, the permissible grounds for interference are very limited and the grounds were required to be considered before refusing to make the award a rule of the court. Such exercise has not been done by the learned court below, and therefore, the impugned order cannot be sustained in the eyes of law, which is accordingly set aside. The matter is remanded back for fresh consideration.

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9. It further appears from perusal of the records received from the learned court below that after filing of the present appeal, the matter remained pending for suggesting the name of Arbitrator for passing fresh award, but no steps were taken and consequently, the case itself was dismissed for default.

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10. In view of the aforesaid fact that the order dated 05.04.2011 has been set aside and the matter is to be decided afresh, the dismissal of the case on account of non – furnishing of the name of Arbitrator will have no consequence. Consequently, the Title (Arbitration) Case No.58 of 1994 is restored and the learned court below is directed to pass fresh order after hearing the parties and considering the scope of interference in the arbitral award under the provision of Arbitration Act, 1940.

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11. The parties are directed to appear before the court of Civil Judge (Senior Division) V, Dhanbad on 27.03.2023. Upon their appearance, the learned court below shall proceed with the matter and pass final order within a period of two months from 27.03.2023 taking into consideration the materials already available on record.

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12. In case any of the parties do not appear, it will be open to the learned court below to proceed as per law and no fresh notice need be issued.

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13. Pending interlocutory application, if any, stands closed.

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14. Let this order be communicated to the learned court below through FAX, E-mail.

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(Anubha Rawat Choudhary, J.)

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Saurav/

M/S Bharat Coking Coal Limited v. Prem Kumar

Case brief

What is this about?

What did the court decide?

M/S Bharat Coking Coal Limited v. Prem Kumar

Case brief

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