1, wwwmww M m (w «W w WW .«1 X4§ P (£ HiéH COURT OF CHMATTISéMRH AT 3ILA$$U§Q DIVI$ION BENCH: HON. MR LKRENDRA MI$HRA & HON. MR. RN. CHANDRAKARW 5LT Arbh'm‘rian Amiga! No.34/2009 Anneiiom/ Chha’rfisgarh 5mm Warehousing ggwican? Corpora‘rion, Raipur Vs kasnondem/ M/s Shyamhl Agrawai Engineers and Non-appiicam Buiiders, Raigarh JUDWENT FOR CON$ID$RATION Sd/- Dhirendra Mishra Judge HON'BLE W. JU5TXCE RN. CHANDIIAKAR ’ w - Sdl— Judge 9 {W Rang‘mm Chandraka" P051" Fara WWMENT 0N\% 41-20% Sdl— Dhirendra Mishra Judge DH wf’ wry? 1¢%{ “QM I): X ! Wx £1 w {V 3 W‘ Mm » s Hlé‘uw £OURT OF CHHATTE$GARH AT RILASPUR Division Bench: Han’bhz $hri Dhiw‘enér‘a Mishr‘a & Hon‘ble Shr'i R.N‘ Chandrakar‘ JJ Arbi‘h'afioan Apgea! Na$34 OF 2009 {Appeai u/x 37 (1) (In) of fha Arbifr'afion ‘8‘ Conciiia’i‘ion Act 1996) Presen‘r: Mr. V.R‘ Tiwdri (Kg Mr. 3D. Guru, Advoca'res for The appeHanT. Mr. ManOJ chouhan, Aayocm‘e “For The responaem‘. Dhirendra MishraR J 1) The appellanT«Corpora’rion has preferred This arbi'rra’rion appea! under Secmm 37 (1) (b) of The Arbifmfion & Conciiiafion Act. 1996 (for brevrry mu, 1996*) agamyr the impugned judgmem da+ed - 13*h August 2009 (Annexure A-l) passed in Civii Sui? No.12-A/O7 whereby The {earned Dis‘rricf Judge; Raigarh has rejecmd The appiicufion preferred by “rhe appeHanT—Corpora'rion under 5ec+ion 34 of The Act. 1996 for seffing aside The award da‘red 13.10.2006 (Anhexure A—2) nassed bv The Sole Arbi'rmfor. 8riefly stared; facTs of The case are The? fhe appeHanT had awarded confrac‘r of consfrucTiOh of 90-down f0 The responden’r firm. An agreemen‘r was execm‘ed befween The par‘ries on 12.1.2002‘for The cons‘rruc‘fion of aforesaid work and The respondenf execufed The work. A dispu‘re arose be‘i'ween ’rhe pariies wi‘rh respect To payment of biiis and *rhe appellan‘i‘ objeci‘ed The quaiii’y of consfrucfion. Uifima'i‘ely; The respondenf moved an appiica’rion under Section 11 (6) of *rhe Act. 1996 before The High CourT for appoinfmeh‘r of Sole Arbi’rra'ror and referring ‘ihe dispui’e arising ou'i' of The arbii’rofion agreemen‘i +0 The URuER (benvmd on L&. 112009) APPELLANT/ ChhaTTisgarh Smfe Warehousing :wpiicam Corporafion, Raipur (CG) “rhr-ough ifs Managing Direcfor. Versus RESPONDENT] M/s Shyamiai Agmwal Engineers and Non—appiican‘r BuHder‘s, “Anand” SmTion fioad, Raigarh, Ta‘nsi} & D3512 Raigarh (C&) ~ Sole ArbiTraTor so appoinTed. The appiicaTion was ailowed on 16.9.2005 and Shri Jus?ice SK. Tiwari {RefdQ was appoinfed ‘Sole Arbiwa‘mr“ and The dispu’re was referred To him for adjudica'rion. Learned .Sole Arbifmwr‘ passed The award in favour of 1’he responden‘r on 13.10.2006. The uppellan’f filed cm oppii‘co‘rion under Secfion 34 of fhe Act, 1996 for seh‘ing aside fhe award do‘red 13.10.2006; however; The some has been dismissed by The impugned order wiTh a finding Thai none of The grounds menTioned in SecTion 34 of The AcT; 1996 is avaiiable To The appeiianT for seTTing aside The award. 3) The appeiianT has preferred This appeal on The ground ThaT as per condiTion of Tender document The conTracTor was required To underfake The consTrucTion by The use of Chimm’ bricks; however; bricks used by The conTracTors were manufacTured in The hand kiini conTrary To The specificoTions in The conTracT agreement The award has aiso been impugned on The ground ThaT The peTiTion has been Tiled by an unauThorized person as parTner of The respondenT firm; Though no evidence has been adduced ThaT The firm in quesTion is a regisTered parTnership firm and Shri JP. Agarwai is a parTner of The said firm and Therefore; ciaim peTiTion was barred by SecTion 69 (2) of The Indian ParTnership AcTi 1932 (for shorT ‘AcTi 1932'). Various oTher grounds have been Taken in The memo of appeal! howeveri The iearned counsel for The appellanT-Co rporaTion pressed The above Two grounds only. Mr. Tiwarii learned counsel apnearing for The appellanT CorporaTion submiTs ThoT The respondenT firm has filed The claim peTiTion Through iTs parTner 5hri JP. Agarwal, buT no regisTered parTnership deed showing The said JP. Agarwal as parTner of The respondenT firm has been filed and Therefore; in View of SecTion 69 (2) of The ACT, 1936,. arbiTral [oroceedings would noT be mainTainabie aT The insTance of an _ iunregisTered firm. Reliance is placed on The Judgmen‘l‘ of The Hon’ble Supreme CourT in The maTTer of UJ’, 5mm Sugar Coryora'i’ian LTd; Ve Join. CensTrusTion (39. and Answer reporfed in (2004) 7 5Q: _ 332. If was furfher argued fha‘r indispu‘mbly fhe responden‘i' used fine bricks manufacfur-ed in hand kihm whereas; as Der nr-Qvisions in fhe I ‘ can‘rracf agreement The respondenf was required f0 use. 'the bricks manufacfured in Chimni kiin. Bofh The above objec‘rions were Taken in The repty 1’0 The s’m‘remem of ciaim before The learned Arbifrafor; however, The same were nof considered by fhe iearned Arbh‘rafor on exfmneous grounds. The learned Dis‘fric? Judge has also rejecfed The aforesaid objecfions wifhou‘r any vahd reason and wi’rhou’r considering fhe seTTled law in This regard. On fhe ofher handi Mr. Chouhen, iearned eounsel for fhe respondeM argued Thaf none of The grounds enumera’red in Secfion 34 of The ACT; 1996 is aveiiabie To The appeiianf. ObjecTions Taken by The appeiianT have been rejecTed by The iearned ArbiTra‘ror wiTh an observaTion ThaT said Mr. JP. Agarwai in his affidavi’r has affirmed ThaT he is parTner of The par‘mership firm and he signed The agreemenT as ?arfner. Fiiing of cerTified copy of regisTered parTnership deed under $ecTion 69 (2) of The AcT‘ 1932 isnoT necessary in The arbiTraTion proceedings and The same is required iaTer on. OTher objec‘rion ThaT The quaiiTy of The bricks used in The consTrucTion of go’down was sub-sTandard and noT in acoordance wiTh The provisions of The agreemenT is aiso beiied from The evidence of The Then Divisional Engineer Shri Sabir, who has admiTTed in Para—4 of This cross—examinaTion ThaT quaIiTy of bricks used in The consTrucTion of go—down was proper; and keeping in view This evidence The learned ArbiTraTor and subsequen'riyi The learned DisTricT Judge reviewed The aforesaid obuiecTion. Finding of The above facT recorded by The arbiTral Tribunal cannoT be chailenged in a neTiTion under SecTion 34 of The AcTi 199$ and The same cannoT be r raised as ground in an appeai under SecTion 37 (1) (b) of The ACT; 1996. 6) We have heard learned counsei for The respecTive parTies. IndispuTabiy, applicaTion filed by The conTracTor under SecTion 11 (6) of The AcT; 1996 was allowed by The High CourT and iT was heid ThaT case for appoinTmenT of Soie ArbiTraTor is made ouT and accordingiyi /) A // ‘Nwww’ The Sohe Arbi‘rm’ror was annoinTed I' I' and The dispm‘z was referred *f‘o The Sole Arbifm‘ror‘ for adjudicm’ion. 8) Now fhe quesfion for our considar‘m‘ion is whefher 1mg $ofe Arbifmfor can enferfain any objac'rion regarding apyoinfmen? of Arbi’rmfcr under 5ec‘rion 11 (6) of The Ac’r, 1996 by fhe High Courf cm fhe ground “ma? appoin'rmen? of Arbi‘rrafor has been made a1' fhe Ensmnce of a parTner of an unregisTered firm in view of provisians of Secfion 69 (2) of The ACT. 1932? Admif‘redlyi The dispu‘re has been referred *m the Sole Arbi‘rm‘ror appoim‘ed by 'rhe High Cour-1' under Seci’ion 11 {6) of The Act. 1996 and no objecfion was Taken by The anneHan'i—Coroorafion I r I before The High Courf on ’rhe ground Thm‘ The pariner of The firm approaching ‘ihe High Cour? for aoooinfmen'r of $ole Arbifra’ror has hm‘ oroduced fhe regisfered parTnership deed showing himself f0 be a roarfner of “the said firm and occepfed ‘l’he appoinfmem of The Arbiirafor and did noi‘ chaiienge ‘ihe same by way of appeal under Ar‘ricle 136 of ihe Consiifufion of India before The Hon‘ble 5upreme Cour-1‘. Therefore. i1“ is now no? open To The appeiiam‘ +0 Take such ohjecfion before The Arbifra‘for as “the Arbi’rrafor has no iurisdicfion 1’0 em‘eriain such objeci‘ion because The aphoinfmen‘r of fhe Arbiira‘i’or has been made by I i r a iudiciai order and in such circumsiances ‘rhe anaeiiam‘ has ‘io U I’l parficipaie in The arbi’ira‘rion proceeding before fhe fribunai oniy on “ihe merits of claim. Piease see Para Nos39. 44 6i 47 of The 5BP &i Co. Vs. Pai‘el Engineering Lid. & anofher regor’red in (2005) 8 5C6 618. 10) In fhe maf‘ier of U.P. Sfa‘re Sugar Corp. Lid. (supra) ihe Hon‘bie Suoreme Cour? in Para~7 of +he iudamenf has observed Thai iT is ‘rrue ’rha‘r ‘rhe arbifrai oroceedinas wouid no‘r be main‘rainabie af The insTance of an unregisTered firm having regard To The mandaTory provisions conTained in SecTion 69 of The ACT; 1932 as held in Jagdish Cihandra 6upm V5: Kg‘garia Traderg {India} LTd, reporTed in AIR 1.964 SC 1882 11) In +he mamar of Kama: Pusyha Enmrprisas V3: QR, Canstmcfian Campgny repor‘fed in AIR 2000 SC 267.6 if has been observed Tha‘f “The prohibifion con'rained in Sacfion 69 is in respect of insfi‘ruTing a proceeding f0 enforce a righ‘r arising from a confmcf in any Cour? by cm unregis’rered firm; and if had no appHcafion To The proceedings before an Arbifmfor and *hai’ ‘roo when The reference To fhe Arbi‘rra’ror was af the insfonce of The appeilam H'self. If The said bar engra‘ffed in $ec+ion 69 is absoiufe in ifs terms and is des‘rrucfive of any and every righf arising under “(he comract iTseW and no‘r confined mere!y To enforcemenf of a righT arising from a con’rroci by an unregisfered firm by insfi‘m‘ring a suif or ofher proceedings in CourT oniyi H wouid become o jurisdicfionai issue in respecf of The Arbi-rrafor’s power; au'l‘horify and compefency ifself'. undermining fhereby fhe iegol efficacy of The very awardi and consequen‘riy furnish a ground by i’rself To choiienge fhe award when if is soughf 1'0 be mode o rule of Court 12) In any case; we are of fhe opinion Tho? in view of The low ioid down in The moTTer of $BP 5g Co. (supra) where The appoinTmenT of The ArbiTraTor is made by The High CourT in exercise of powers under SecTion 11 (6) of The AcTi 1996; iT is noT open To The ArbiTraTor To enTerToin any objecTion ThoT arbiTroTion proceedings aT The insTance of The porTner of an unregisTered firm is noT mainToinabie. The oniy remedy in such siTuoTion wouid be fiiing of on oppeoi ogoinsT The oppoinTmenT before The Hon‘bie Supreme CourT. 133 OTher objecTion ThaT The sub-sTandord bricks monufocTured in hand kiin were used conTrary To The Terms of The agreemenT which provided for bricks manufocTured in Chimm’ kiln; The arbiTmi Tribune! on The basis of admission of The In—chorge Engineer examined by The appeiionT-corporoTion has rejecTed The above objecTion and The some has been again reuiecTed by The iearned DisTricT Judge and Therefore; The finding of facT recorded by The arbiTrai Tribunai in The award cannoT be assailed on This ground in an appeai under SecTion 37 (1) (b) of The ACT; 1996. w’x 14») In me resuH, 1"he appeal prefer-red by fhe appefkmf is wifhcuf may merit. *rhe same deserves 1'0 be dismissm and if is hereby dismissed. Dhirendra Sd/- Mishra Sd/_ Judge Rangnath Judge Chandrakar