THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRP No.350 of 2009 Date: 24.11.2009 Between: A.P.State Trading Corporation Ltd., Hyderabad, rep by its Vice Chairman & Managing Director. And M/s.Seapace Shipping Co., Ltd., A company Organized under the laws of Limassol Cyprus having its registered office at Cyprus, rep by its Sole Director, Anastassios Politis. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRP No.350 of 2009 ORDER: 1 . This revision is directed against the order dated 14.10.2008 passed in I.A.No.2540 of 2008 in O.P.No.1392 of 1999 on the file of the Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the learned Chief Judge dismissed the application filed by the petitioner under Order 7 Rule 14 CPC. 2. The petitioner filed O.P.No.1392 of 1999 questioning the award passed in the Maritime Arbitration between Sea Peace Shipping Company Limited and A.P.State Trading Corporation Limited, Hyderabad. It appears that the O.P.No.1392 of 1999 ended in dismissal for default. The order of dismissal came to be challenged by filing C.M.A.No.3395 of 2003 and ultimately CMA came to be allowed by remanding the matter back to the Chief Judge, City Civil Court for fresh disposal. Thereafter, the petitioner filed I.A.No. 2540 of 2008 under Order 7 Rule 14 CPC to receive the documents. It is stated in the affidavit filed in support of the petition that the documents could not be filed earlier as they were submitted to Arbitrator of Bangladesh Government. 3. Para No.7 of the affidavit needs to be extracted and it is thus:- “I submit that the Bangladesh Government has encashed the Bank Guarantee of APSTC to the tune of 1.93 Crores only due to the non supply of goods in time and in quantity by the respondent company in addition some other miscellaneous claims. The shortages amount is specified by Bangladesh Government as 82448.83 USD so far as the vessel of the respondent is concerned which has been arrived by the Bangaladesh Government on the basis of discharge of rice at Chittagong and Mongla ports. The calculations of Laytime is made by the officials of Bangaledsh which was not disputed by the respondent as such the laytime notings which is signed by the counselor movement and storage food, Chittagong has to be taken into consideration while calculating laytime used and laytime allowed to arrive the correct demurrages payable to the respondents. As per the charter the respondent company is not entitled to any demurrages if the vessel is not on berth and even if weather is not conducive for discharge of cargo. Taking all these into consideration and taking actual laytime7 used, the Bangladesh Government arrived at 10 days 4 hours 11 minutes as laytime used at Chittagong and Mongla ports which is authenticated. All these documents could not be filed earlier as they were submitted to Arbitrator of Bangladesh, who have raised the dispute only due to encashment of Bank Guarantee by the Bangladesh Government in view of non- supply of specified quantity of rice. In view of controversy and the dispute the above documents are important and necessary to resolve the dispute and for adjudication of the above case on merits. These documents could not be filed earlier due to the above stated reason and as the O.P was disposed of earlier when the Corporation counsel failed to appear when the case was posted hence if the documents which are enlisted are not received to facilitate the marking of the same as exhibits the Corporation which is Government Undertaking will suffer and the public money will be at stakes.” 4. The respondents filed counter resisting the application. It is stated in the counter affidavit that the High Court while remanding the matter for fresh disposal, no liberty was granted to the petitioner to produce and or apply for production of additional documents/evidence. Accordingly, the matter is to be decided only on the basis of the record as it stands. It is further stated in the counter that the respondents were not parties to the said contract and thus the terms thereof have no bearing on the present matter which arises under a charter party contract entered into between the petitioner and the respondent. Arbitration proceedings stood concluded on 16th June 1999. The present OP was filed on 10th September 1999 and was disposed off by an order dated 4th April 2003. In the year 2003, an appeal under Section 39 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) was filed and the said appeal was disposed off by an order dated 14th November 2007, by way of which the matter was remanded for fresh disposal. 5. The learned Chief Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, by order dated 14.10.2008, dismissed the application on the ground that no satisfactory reasons have been made out for not filing the documents all these years. For better appreciation, I may refer the relevant portion of the order, which reads as hereunder:- “The petitioner’s case is that these documents were filed in another proceedings before the arbitrator in Bangladesh. But nothing prevented the petitioner to obtain the copies of these documents and file the same before the arbitrator in this case. It is not the case of the petitioner that the petitioner could not obtain the copies of those documents from the arbitrator in Bangladesh. In fact, even before filing those documents before the arbitrator in Bangladesh, the petitioner could have retained the copies of those documents or at least xerox copies of those documents could have filed before the arbitration in this case. Now they are filing the attested true copies of the originals i.e., the xerox copies are being attested as true copies. This the petitioner could have done a decade ago. No sufficient reasons have been shown for not filing of these documents are allowed to be received. More over another argument will be raised stating that the arbitrator had no opportunity to look into those documents, therefore, the matter has to be remanded back to the arbitrator for fresh appreciation of evidence. In my humble view that kind of procedure after a period of decade is neither permissible nor advisable. Parties to be diligent in prosecuting their case. They must collect all the documents in their possession and power and based their pleadings on the documentary evidence, which is in their possession and power if at all the documents are not in their possession, they must obtain the documents from the possession of the persons in whose custody those documents are Section 27 of the Arbitration and Conciliation Act enables the parties to meet that situation. In view of the above discussion, I am of the view that there is no justification or reasonable grounds to allow the petition. Hence, the petition is dismissed.” Assailing the said order, the petitioner filed this revision. 6. The Civil Revision Petition came to be admitted on 30.1.2009 and an order of interim stay came to be issued on the even date vide CRPMP No.507 of 2009. The respondent entered appearance and filed vacate stay petition with a request to vacate the interim order dated 30.1.2009 passed in CRPMP No.507 of 2009. When the vacate stay petition came up for consideration, with the consent of the counsel appearing for the parties, the Civil Revision Petition itself is taken up for disposal. 7 . Heard Smt B.Neeraja Sudhakar Reddy, learned counsel appearing for the petitioner and Sri P.Vinyaka Swamy, learned counsel appearing for the respondent. 8. The learned counsel appearing for the petitioner submits that the petitioner could not file all the documents, which have been enclosed to the petition, earlier in point of time because the documents were held up in arbitral proceedings in Bangladesh. A further submission has been made that initially O.P.No.1392 of 1999 ended in dismissal and thereupon, CMA came to be filed and the said CMA was allowed remanding the matter back to the Civil Court and thereafter, the petitioner filed the application under Order 7 Rule 14 CPC to receive the documents and therefore, there is no delay on the part of the petitioner in filing the said application. The learned counsel further contends that under Section 8 of the Arbitration and Conciliation Act 1996, the High Court framed the Rules and as per the said Rules, the provision of Order 7 Rule 14 CPC are made applicable. She would also contends that the documents are very much relevant for proper adjudication of the disputes between the parties and in which case, the trial Court has ample powers to receive the same though they were not placed before the Arbitrator. In support of her submission, reliance has been placed on the judgment of the Supreme Court in Billa Jagan Mohan Reddy and another v. Billa Sanjeeva Reddy and others. 9. The learned counsel appearing for the respondent submits that the application filed by the petitioner being one under Section 34 of the Arbitration and Conciliation Act, the scope of the Civil Court is very limited and it cannot be expanded to receive the documents which do not form part of the award. He would also contend that the petitioner has not given proper explanation for not producing the documents before the Arbitrator or at least before the civil Court soon after filing the OP under Section 34 of the Act in the year 1999. In support of his submissions, reliance has been placed on the decision of the Supreme Court in Union of India v. M/s.Popular Construction Co. 10. The only issue that calls for adjudication in this revision is whether the petitioner has offered sufficient reasons for not filing the documents before the arbitrator or at lest along with O.P. in the year 1999. 11. The affidavit filed in support of the petition, relevant portion of which already been extracted supra, does not indicate on which date the petitioner received the copies of the documents which are sought to be received as evidence in Civil Court. A bald averment is made in the affidavit that all the documents could not be filed earlier as they were submitted to arbitrator in Bangladesh. No proper explanation has been given by the petitioner for not filing the documents along with the O.P.No.1392 of 1999. After nearly 9 years, the petitioner filed I.A.No.2540 of 2008 under Order 7 Rule 14 CPC to receive the documents enlisted therein. No satisfactory explanation has been given by the petitioner for not placing the documents along with O.P.No.1392 of 2009. The scope of the Civil Court in interfering with the award passed by the arbitrator has been enumerated in Section 34 of the Arbitration and Conciliation Act. Unless the petitioner makes out a valid ground for not placing the document before the Arbitrator, it is impermissible for the Civil Court to consider the same while testing the validity or otherwise of the award passed by the Arbitrator. In that view of the matter, I do not see any valid ground to interfere with the order passed by the lower Court. 12. Hence, the Civil Revision Petition is devoid of merits and accordingly, the same is hereby dismissed. No order as to costs. ___________________________ Justice B.Seshasayana Reddy Date:24.11.2009 mrb