M/S Manish Man Power Agency Vs the Commissioner

M/S MANISH MAN POWER AGENCY, SHOP NO.10, G-10, SHARAY TOWER, BESIDES GOVERNMENT PRESS, M.S.K. MILL ROAD, KALAGURGI-585 103. REPRESENTED BY ITS, MANAGING PARTNER, SRI YALLAPPA B KANDKUR.

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…APPELLANT

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Digitally signed by K G RENUKAMBA Location: High Court of Karnataka

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(BY SRI. JAYAKIRTHI M C., ADVOCATE)

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AND:

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THE COMMISSIONER, DEPARTMENT OF REVENUE, SURVERY SETTLEMENT AND LAND RECORDS, K R CIRCLE, BENGALURU-560 001.

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THE JOINT DIRECTOR (ADMINISTRATION), OFFICE OF THE COMMISSIONER, DEPARTMENT OF REVENUE, SETTLEMENT AND LAND RECORDS,

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K.R.CIRCLE, BENGALURU-560 001.

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THE TECHNICAL ASSISTANT, TO THE DEPUTY COMMISSIONER, AND THE IN-CHARGE, ASSISTANT DIRECTOR OF LAND RECORDS, BELLARY DISTRICT, BELLARY-583 101.

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THE TECHNICAL ASSISTANT, TO THE DEPUTY COMMISSIONER, AND THE IN-CHARGE, ASSISTANT DIRECTOR OF LAND RECORDS, KALABURGI DISTRICT, KALABURGI-585 103.

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THE TECHNICAL ASSISTANT, TO THE DEPUTY COMMISSIONER, AND THE IN-CHARGE, ASSISTANT DIRECTOR OF LAND RECORDS, RAICHUR DISTRICT,RAICHUR -584 101.

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THE TECHNICAL ASSISTANT, TO THE DEPUTY COMMISSIONER, AND THE IN-CHARGE, ASSISTANT DIRECTOR OF LAND RECORDS, YADGIR DISTRICT, YADGIR-582 101.

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…RESPONDENTS

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(BY SRI. ADITYA VIKRAM BHAT, AGA)

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THIS COMAP/COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1A) OF THE COMMERCIAL COURTS ACT, UNDER SECTION 37 OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO CALL FOR THE RECORDS FROM THE ARBITRATION AND CONCILIATION CENTRE AT BENGALURU IN A.C. NO. 165 OF 2022 AND TO CALL FOR THE RECORDS FROM THE COURT OF THE LXXXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,

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BENGALURU (CCH-88) IN COM. A.P. NO. 119 OF 2022 AND SET ASIDE THE JUDGMENT DATED 05.08.2024 PASSED BY THE LXXXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-88) IN COM. A.P. NO. 119 OF 2022 AND RESTORE THE ARBITRAL AWARD DATED 11.08.2022 PASSED IN A.C. NO. 165 OF 2022 BY THE ARBITRAL TRIBUNAL AT ARBITRATION AND CONCILIATION CENTRE AT BENGALURU AND AWARD COSTS ETC.,

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THIS APPEAL, COMING ON FOR ADMISSION ALONG WITH IA NO.1/2024 FOR STAY THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE S RACHAIAH

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

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This appeal filed under Section 13(1A) of

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Commercial Court Act read with Section 37 of the Arbitration and Conciliation Act, 1996 (in short, ‘Act of 1996’) lays a challenge to an order dated 05.08.2024 passed by the Court of LXXXVII Additional City Civil and Sessions Judge, Bengaluru (CCH-88) in Com.AP No.119/2022, whereby the learned Sessions Judge has allowed the petition filed by the respondents herein under

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Section 34 of the Act of 1996, and set aside the Arbitral

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Award dated 11.08.2022 passed by the learned Arbitrator in A.C. No.165/2022.

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The primary reason for the learned Sessions Judge to set aside the order/award of the learned Arbitrator was, denial of opportunity to the respondents herein. Paragraph-11 of the impugned order reads as under:-

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“11. Now, the question that arises before this court is; Whether, the tribunal had given sufficient opportunity to these petitioners to defend their case before the tribunal. If we carefully peruse the minutes of meeting held between 12.05.2022 to 11.08.2022, the arbitration proceedings was concluded within 3 months from the date of 1^st meeting on 12.05.2022. Admittedly, the petitioners herein who are the respondents before the tribunal is a Department of Revenue Survey Settlement And Land Records who was suppose to be represented by a Government Pleader. It could also be seen from the minutes of meeting dtd:12.05.2022, 03.06.2022 that, the Government had made all its efforts to appoint a Government Advocate by following the procedures contemplated under law i.e., by obtaining Government Notification from the Head of legal cell and Ex-officio

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Deputy Secretary to Government and the particular order was also placed before the tribunal. If we carefully peruse these minutes of meeting, it could be clearly seen that, the Sole Arbitrator viewed the conduct of the petitioner Department in a very technical manner and no opportunity was given to them to file their objections and counter claim nor an opportunity to cross examine P.W.1. It is well settled principle of law that, in any proceedings though the defendant or respondents did not choose to file their objections or written statement, their right to cross examine the witness examined by the opposite party could not be denied either by the court or by any tribunal as it will amount to injustice. Since the petitioners herein is a Department of Revenue Survey Settlement And Land Records. It is quite obvious that, they will require some more time to search for certain documents to defend their case. No doubt it is true that, no privilege can be given to the Government which is also a defendant or respondent before the tribunal but, at the same time the tribunal ought not to have refused the prayer of officials of the petitioners that, Government pleader cannot appear before the tribunal in view of the ill-health of his father. If we peruse the proceedings held before the tribunal, the award has been passed on the basis of technical grounds i.e., non-filing of objections by the respondents and not cross-examining the P.W.1. At this stage, I would like to rely on the decision reported in; Associate Builders .Vs. Delhi Development Authority, in para 30 of the Judgment Hon'ble

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Apex Court has held "audi alteram partem principle which undoubtedly is a fundamental juristic principle in Indian law is also contained in Sec. 18 of the Act which says that; the parties shall be treated with equality and each party shall be given a full opportunity to present his case. If the present case is perused, in the light of above decision of Hon'ble Apex Court, the arbitrator has observed that, there was no response from the respondents though they were represented by their counsel. This court has observed the manner in which the arbitral award was passed in the absence of respondents. Hence, I hold the award passed by the sole Arbitrator in the above claim petition needs to be set aside. Accordingly, I answer Point No. 1 in the "Affirmative".

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The submission of the learned counsel for the

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appellant is that, the learned Sessions Judge has set aside the order/award, without liberty, for fresh consideration of the dispute leaving the appellant remediless against the claim(s). In other words the learned Sessions Judge should have referred the matter back to the learned Arbitrator for fresh determination after giving opportunity to the respondents herein to put their case.

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Mr. Bhat on the other hand would submit that the learned Sessions Judge has rightly set aside the award in as much as even if the respondents have not filed statement of objections, the learned Arbitrator could not have denied the respondents the right of crossexamination of witnesses of the appellant to the extent of claims made before the learned Arbitrator. He also states that, nothing precluded the appellant to invoke arbitration clause in the agreement afresh for determination of dispute inter-se between the parties in accordance with law.

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In view of the submission made by Mr. Bhat, the learned counsel for the appellant would submit that the appellant shall invoke the arbitration clause in the agreement between the parties and proceed thereafter in accordance with law.

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In view of the said submission, nothing survives in this appeal. The appeal is disposed of .

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At this stage, Mr. Bhat submits that, in terms of

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the order passed by the learned Sessions Judge, the respondents herein had deposited 40% of the awarded amount before the learned Sessions Judge. If that be so, the liberty is with the respondents to file appropriate application for release of the amount, for the consideration of the learned Sessions Judge.

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Pending IA No.1/2024 for stay do not survive

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for consideration and it stands disposed of.

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Sd/(V KAMESWAR RAO) JUDGE

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Sd/(S RACHAIAH) JUDGE

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KGR* List No.: 1 Sl No.: 33

M/S Manish Man Power Agency v. the Commissioner

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M/S Manish Man Power Agency v. the Commissioner

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