CRA/107/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 107 of 2007 With CIVIL REVISION APPLICATION No. 132 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= CHANDRAKANT RAMANLAL PATEL - Applicant(s) Versus EXECUTIVE ENGINEER - Opponent(s) ========================================================= Appearance : MR KG SUKHWANI for Applicant(s) : 1, MS NAYNABEN K GADHVI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/08/2008 ORAL JUDGMENT 1. Rule. Ms.Nayna K.Gadhvi, learned advocate waives service of notice of Rule on behalf of respondent. With the consent of learned advocates CRA/107/2007 2/7 JUDGMENT appearing for the respective parties, the revision applications are taken up for final hearing today. 2. By way of Civil Revision Application No.107 of 2007 the petitioner-original respondent of Transferred Arbitration Reference No.14 of 1996 has prayed for an appropriate order to quash and set aside the order dated 3.5.2007 passed by the learned Gujarat Public Works Contracts Disputes Arbitration Tribunal, Ahmedabad (hereinafter referred to as “the Tribunal”) passed in MCA Review Petition No.3 of 2006 in Transferred Arbitration Reference No.14 of 1996 in dismissing the said application. By way of Civil Revision Application No.132 of 2007 the petitioner-original respondent of Transferred Arbitration Reference No.14 of 1996 has prayed for an appropriate order to quash and set aside the order dated 7.9.2006 passed by the Tribunal in Transferred Arbitration Reference No.14 of 1996. 3. It appears that the respondent-Executive Engineer filed Special Civil Suit No.29 of 1994 before the learned Civil Judge (S.D.), Himatnagar for damages after the contract was terminated by the respondent on 2.5.1991 and it was prayed for a decree to recover Rs.53,123/-. That on the establishment of the Tribunal, the aforesaid suit was required to be transferred to Tribunal, and therefore, an application Exh.12 was given to transfer the case to CRA/107/2007 3/7 JUDGMENT the Tribunal and it was accordingly transferred to the Tribunal. That by judgment and order dated 7.9.2006 the learned Tribunal allowed the Transferred Arbitration Reference No.14 of 1996 passing the order the petitioner do recover a sum of Rs.53,123/- together with interest. It is the case on behalf of the petitioner-original respondent that after the impugned judgment and award dated 7.9.2006, the respondent got certain documents which were relevant for the purpose of determination of the dispute and therefore the petitioner herein-original respondent submitted Review application No.3 of 2006 invoking Section 11 of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 (hereinafter referred to as “the Act”), and it was requested to review the judgment and award passed by the tribunal dated 7.9.2006. The said review application came to be dismissed by the Tribunal vide impugned order dated 3.5.2007 by observing that the petitioner herein-original respondent has failed to make out a case to review the judgment and order passed by the Tribunal dated 7.9.2006 and it has not been explained by the petitioner as to why he has not been able to find out the correspondence file earlier, which he now claims to have found out. The Tribunal also observed that it is difficult to believe that the petitioner was not able to find out the file for years together in spite of due diligence. 3.1 Being aggrieved and dissatisfied with the order dated 3.5.2007 passed by the Tribunal in MCA Review CRA/107/2007 4/7 JUDGMENT Petition No.3 of 2006 in Transferred Arbitration Reference No.14 of 1996 in dismissing the said review application and refusing to reconsider/review the judgment and award passed in Transferred Arbitration Reference No.14 of 1996 as well as the judgment and award passed by the Tribunal passed in MCA Review Petition No.3 of 2006 in Transferred Arbitration Reference No.14 of 1996, the petitioner herein has preferred the present two revision applications. 4. Shri K.G.Sukhwani, learned advocate appearing on behalf of the respective petitioner has vehemently submitted that as such the Tribunal has erred in not exercising the powers under Section 11 of the Act. It is submitted that the petitioner could find out the correspondence subsequent to the award, and as such, by not producing the documents/correspondence earlier, the petitioner was not going to be benefitted. It is submitted that as such on imposition of certain costs, the Tribunal ought to have allowed the review application by permitting the petitioner to produce the relevant documents/correspondence. It is submitted that even otherwise on merits also the Tribunal has committed an error in passing the award for an amount of Rs.53,123/- together with interest. 5. While opposing the present revision applications, Ms.Nayna Gandhi, learned advocate appearing on behalf of the respondent has submitted that in the facts and circumstances of the case when CRA/107/2007 5/7 JUDGMENT the petitioner failed to satisfy the Tribunal that in spite of due diligence the correspondence were not found out, and considering the same, when the Tribunal has dismissed the application to review the impugned judgment and award, it cannot be said that any illegality has been committed by the Tribunal which warrants interference of this Court in exercise of powers under Section 115 of the CPC. 6. Heard the learned advocates appearing for the respective parties. 7. At the outset it is required to be noted that the judgment and award came to be passed by the Tribunal on 7.9.2006 for an amount of Rs.53,123/-. It is required to be noted that the said recovery was by way of damages only. It is required to be noted that it is the case on behalf of the petitioner that after the impugned judgment and award the petitioner could found out the relevant correspondence file which was initially misplaced and which could not be produced at the time of hearing of Transferred Arbitration Reference No.14 of 1996 and therefore it was requested to exercise the powers under Section 11 of the Act to review the judgment and award. The Tribunal dismissed the review application by holding that the petitioner has failed to satisfy and/or make out a case that though they were diligent they could not found out the correspondence file which are sought to be produced. It is to be noted that under Section 11 of the Act, the Tribunal has power to CRA/107/2007 6/7 JUDGMENT review its own order/award. It appears that the Tribunal has missed the point that by not producing the documents which are sought to be produced at the relevant time, the petitioner was not going to be benefitted. There was no reason for the petitioner not to produce the correspondence which are sought to be produced, at the time of hearing of Transferred Arbitration Reference No.14 of 1996. It appears that subsequently the correspondence file has been found out and to do complete substantial justice the Tribunal ought to have allowed the review application by permitting the petitioner to produce the relevant documents/correspondence files which are sought to be produced, at least on imposition of certain costs. If such a course would be adopted, it would be in the fitness of things and to do complete substantial justice. As this Court proposes to allow the review application submitted by the petitioner by quashing and setting aside the impugned order dismissing the review application, this Court is not further considering the case on merits against the judgment and award passed in Transferred Arbitration Reference No.14 of 1996. It appears to the Court that if on imposition of costs of Rs.7,500/- (Rupees Seven Thousand Five Hundred only) to be paid by the petitioner to the respondent, the impugned order passed by the Tribunal passed in MCA Review Petition No.3 of 2006 in Transferred Arbitration Reference No.14 of 1996 deserves to be quashed and set aside, it will meet the ends of justice. CRA/107/2007 7/7 JUDGMENT 8. For the reasons stated above, both Civil Revision Applications No.107 of 2007 and 132 of 2007 are hereby allowed. The order passed by the Tribunal dated 3.5.2007 passed in MCA Review Petition No.3 of 2006 in Transferred Arbitration Reference No.14 of 1996 is hereby quashed and set aside and the said application is allowed by permitting the petitioner to produce the relevant correspondence file before the Tribunal, on condition of payment of Rs.7,500/- (Rupees Seven Thousand Five Hundred only) by way of cost to the respondent within a period of four weeks from today, and on such deposits, the learned Tribunal is directed to review the judgment and award dated 7.9.2006 passed by the Tribunal in Transferred Arbitration Reference No.14 of 1996. Rule is made absolute accordingly to the aforesaid extent in both the applications. ( M.R. SHAH, J. ) syed/