Case: BIHAR INDUSTRIAL AREA DEVELOPMENT AUTHORITY &amp; ORS Vs. RAMA KANT SINGH

a decree within the meaning of section – 2 of the Code of Civil Procedure, 1908 of the principal Court of original jurisdiction within the local limits whereof the award or the interim award has been made and shall be executed accordingly. (emphasis added) 13. Revision.- (1) The High Court may, suo motu at any time or on an application made to it within three months from the date on which the award or interim award is made or reviewed under this Act, by any party aggrieved by the award or interim award so made or reviewed, call for the record of any case in which an award or interim award has been made or as the case may be reviewed and if the Tribunal appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. (2) For the purpose of exercising its powers of revision under this section, ? the High Court shall have the same powers as it has, and as far as may be, follow the same procedure as it follows, under the Code of Civil Procedure, 1908 while exercising its powers of revision under section-115 of the Code and for that purpose the Tribunal shall be deemed to be a Court subordinate to it. 18. Extension of period of limitation in certain cases. – The Tribunal may admit a reference under sub--section (2) or entertain an application for review under sub--section (1) of Section 11 or for revision under sub--section (1) of Section 12 after the period of limitation laid down in sub--section (1) of Section 8, sub--section (2) of section 11 or as the case may be, sub--section (1) of Section 12 if the party satisfies the Tribunal that the party had sufficient cause for not making the reference, or as the case may be, the application for review or revision within such period. 9. In this case, admittedly, there is no arbitration clause in the agreement between the parties. Sub--section (1) of Section 9 provides that even if there is no arbitration clause, the dispute arising between the parties to the contract must be referred to the Arbitration Tribunal. The dispute has been defined under Clause (e) of Section 2 of the 2008 Act. It means any difference relating to any claim arising out of the execution or non-execution of the whole or a part of a works contract, including the dispute regarding rescission thereof. Section 22 of the 2008 Act starts with a non-obstante clause which provides that notwithstanding anything contained in any other law, rule, order, scheme, or contract, any dispute as defined under section (e) of Section 2 shall be regulated by the provisions of the 2008 Act in the absence of an arbitration clause in the agreement. 10. In view of Section 8 of the 2008 Act, if any of the provisions of the 2008 Act are in conflict with the 1996 Act, the latter shall prevail to the extent of the conflict. In the present case, as there is no arbitration clause in the agreement between the parties, the provisions of the 1996 Act will have no application. Therefore, the reference to the Arbitration Tribunal will be governed by the 2008 Act. 11. As noted earlier, under sub--section (1) of Section 9 of the 2008 Act, the period of limitation is of one year from the date on which the dispute has arisen, which date in the present case is 8th June 2010, when the first appellant terminated the agreement. 12. As the 2008 Act provides for a specific period of limitation, Article 137 of the schedule in the 1963 Act will not apply. To that extent, the Arbitration Tribunal has committed an error. Under Section 18 of the 2008 Act, the Arbitration Tribunal has the power to condone the delay. The High Court recorded a finding that as the representation made by the respondent against the order of termination of the contract was kept pending for an inordinately long time and was not at all decided, the delay was explained by the respondent. The High Court, by recording the said finding in paragraph 10 of the impugned Judgment, held that sufficient cause was made out by the respondent for the delay. As observed earlier, the Arbitration Tribunal has the power to condone the delay in making a reference. Therefore, under Article 136 of the Constitution of India, this is not a fit case to interfere with the award on the ground that the reference was barred by limitation. 13. On merits, we find that the Arbitration Tribunal has interpreted various clauses of the agreement between the parties and held that there was no provision therein to forfeit the earnest money as well as the security deposit. The Arbitration Tribunal held that the first appellant had made only a part payment of the 4th bill. The Arbitration Tribunal held that an amount of Rs. 27,94,990/-- (Rupees twentyseven lakh ninety-four thousand nine hundred ninety only) was not paid as per the 4th bill. 14. As can be seen from Section 13 of the 2008 Act, the scope of revision is limited. A perusal of the judgment of the High Court shows that it has considered and interpreted some of the clauses in the agreement between the parties. High Court found that the Arbitration Tribunal had the jurisdiction to make the award and that the award does not suffer from manifest illegality and material irregularity. The High Court rightly found that the scope for interference with the award of the Arbitration Tribunal in revisional jurisdiction was very narrow. In the absence of any perversity, the High Court could not have given a different interpretation to the clauses in the agreement from the one provided by the Arbitration Tribunal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. In this case, admittedly, there is no arbitration clause in the agreement between the parties. Sub--section (1) of Section 9 provides that even if there is no arbitration clause, the dispute arising between the parties to the contract must be referred to the Arbitration Tribunal. The dispute has been defined under Clause (e) of Section 2 of the 2008 Act. It means any difference relating to any claim arising out of the execution or non-execution of the whole or a part of a works contract, including the dispute regarding rescission thereof. Section 22 of the 2008 Act starts with a non-obstante clause which provides that notwithstanding anything contained in any other law, rule, order, scheme, or contract, any dispute as defined under section (e) of Section 2 shall be regulated by the provisions of the 2008 Act in the absence of an arbitration clause in the agreement.10. In view of Section 8 of the 2008 Act, if any of the provisions of the 2008 Act are in conflict with the 1996 Act, the latter shall prevail to the extent of the conflict. In the present case, as there is no arbitration clause in the agreement between the parties, the provisions of the 1996 Act will have no application. Therefore, the reference to the Arbitration Tribunal will be governed by the 2008 Act.11. As noted earlier, under sub--section (1) of Section 9 of the 2008 Act, the period of limitation is of one year from the date on which the dispute has arisen, which date in the present case is 8th June 2010, when the first appellant terminated the agreement.12. As the 2008 Act provides for a specific period of limitation, Article 137 of the schedule in the 1963 Act will not apply. To that extent, the Arbitration Tribunal has committed an error. Under Section 18 of the 2008 Act, the Arbitration Tribunal has the power to condone the delay. The High Court recorded a finding that as the representation made by the respondent against the order of termination of the contract was kept pending for an inordinately long time and was not at all decided, the delay was explained by the respondent. The High Court, by recording the said finding in paragraph 10 of the impugned Judgment, held that sufficient cause was made out by the respondent for the delay. As observed earlier, the Arbitration Tribunal has the power to condone the delay in making a reference. Therefore, under Article 136 of the Constitution of India, this is not a fit case to interfere with the award on the ground that the reference was barred by limitation.13. On merits, we find that the Arbitration Tribunal has interpreted various clauses of the agreement between the parties and held that there was no provision therein to forfeit the earnest money as well as the security deposit. The Arbitration Tribunal held that the first appellant had made only a part payment of the 4th bill. The Arbitration Tribunal held that an amount of Rs. 27,94,990/-- (Rupees twentyseven lakh ninety-four thousand nine hundred ninety only) was not paid as per the 4th bill.14. As can be seen from Section 13 of the 2008 Act, the scope of revision is limited. A perusal of the judgment of the High Court shows that it has considered and interpreted some of the clauses in the agreement between the parties. High Court found that the Arbitration Tribunal had the jurisdiction to make the award and that the award does not suffer from manifest illegality and material irregularity. The High Court rightly found that the scope for interference with the award of the Arbitration Tribunal in revisional jurisdiction was very narrow. In the absence of any perversity, the High Court could not have given a different interpretation to the clauses in the agreement from the one provided by the Arbitration Tribunal.