Case: M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT  BOARD &amp; ANR Vs. K.P. DWIVEDI

latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion. 16. Apart from the fact that the award declared by the Arbitrator – Housing Commissioner was not challenged by the respondent – contractor, even, so long as the said award is not challenged before the higher forum the same is binding between the parties. Even the award or a nullity order has to be challenged before the appropriate forum/higher forum. In the present case it cannot be said that there was a total lack of jurisdiction of the Arbitrator – Housing Commissioner in passing the award as it was the High Court who passed the order with consent referring the dispute between the parties for the adjudication to the Arbitrator – Housing Commissioner. Therefore, unless and until it was challenged by the contractor before the higher forum, the respondent – contractor cannot be permitted to ignore and/or to avoid the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. 17. Even otherwise, it is required to be noted that what was filed before the High Court was the revision application filed by the contractor under Section 19 of the 1983 Act rejecting the reference petition as not maintainable. Section 19 of the 1983 Act reads as under: 19. High Courts power of revision. – The High Court may suo motu at any time or an application for revision made to it within three months of the award by an aggrieved party, call for the record of any case in which an award has been made under this Act by issuing a requisition to the Tribunal and upon receipt of such requisition, the Tribunal shall send or cause to be sent to that Court the concerned award and record thereof; Provided that any application for revision may be admitted after the prescribed period of three months, if the applicant satisfied the High Court that he had sufficient cause for not preferring the revision with such period. Explanation: - The fact that the applicant was misled by any order, practice or judgment or the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. (2) If it appears to the High Court that the Tribunal- (a) has exercised a jurisdiction not vested in it by law; or (b) has failed to exercise a jurisdiction so vested; or (c) has acted in exercise of its jurisdiction illegally, or with material irregularity; or (d) has misconducted itself or the proceedings; or (e) has made an award which is invalid or has been improperly procured by any party to the proceedings, the High Court may make such order in the case as it thinks fit. (3) The High Court shall in deciding any revision under this section exercise the same powers and follow the same procedure as far as may be, as it does in deciding a revision under Section 115 of the Code of Civil Procedure 1908 (No. 5 of 1908). (4) The High Court shall cause a copy of its order in revision to be certified to the Tribunal. Explanation. - For the purposes of this section, an award shall include an interim award. Therefore, as per Section 19 of the 1983 Act, Revision Application to the High Court shall be maintainable only against the award passed by the learned Arbitral Tribunal. Therefore, prima facie it appears that as such the order passed by the learned Arbitral Tribunal rejecting the reference petition was not maintainable as by order dated 27.02.2017, no award was passed by the Tribunal. However, as no such objection was raised before the High Court and no submission has been made by the parties, we rest the matter there. 18. Even otherwise it is required to be noted that while passing the impugned judgment and order, the High Court has not set aside the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. Therefore, technically speaking the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands even today. It is binding between the parties. So long as the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands, there cannot be any subsequent fresh proceeding with respect to the same claims which were considered and adjudicated by the Arbitrator – Housing Commissioner while passing the award dated 07.11.2008. So long as the said award stands it is binding between the parties. 19. Even otherwise it is required to be noted that no objection was raised by the respondent – contractor before the Arbitrator – Housing Commissioner on the jurisdiction of the Housing Commissioner to act as an Arbitrator. On the contrary as observed hereinabove the order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner was a consent order and the respondent - contractor conceded to and accepted the said order and submitted his claim before the Arbitrator – Housing Commissioner. The Arbitrator – Housing Commissioner also passed an award on the said claim. Therefore, as no objections were raised by the respondent – contractor at the appropriate stage, the award cannot be annulled subsequently. At the cost of repetition, it is observed that at no point of time the respondent – contractor had challenged the award passed by the Arbitrator – Housing Commissioner and as observed and held hereinabove even no court has set aside the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 and the same has attained finality. Therefore, the same is binding between the parties. Hence, the subsequent fresh reference petition before the learned Arbitral Tribunal under the 1983 Act for the very same claims which were raised before the Arbitrator – Housing Commissioner would not be maintainable at all. We agree with the view taken by the Arbitral Tribunal.

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

Explanation:
1[ds]14. The case of the respondent – contractor that the earlier order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008, referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner and thereafter the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 are non- est and void and therefore, it was open for the contractor to file a fresh reference petition before the learned Arbitral Tribunal under Section 7 of the 1983 Act, cannot be accepted for the following reasons:(i) It was the respondent – contractor who approached the High Court by filing Writ Petition No.9131 of 2008 submitting that he has invoked the arbitration clause;(ii) The order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008 referring the dispute between the parties to the Arbitrator – Housing Commissioner was a consent order;(iii) Thereafter the respondent – contractor submitted the claims before the learned Arbitrator – Housing Commissioner;(iv) The learned Arbitrator – Housing Commissioner passed an award which has attained the finality;(v) That the review petition filed by the contractor for clarification of the order dated 20.08.2008 passed in Writ Petition No.9131 of 2008 to clarify the aforesaid order to the extent that it did not take away the right of the contractor to file the reference petition before the learned Arbitral Tribunal under the 1983 Act came to be rejected and the same also attained finality;(vi) The claims submitted before the Arbitrator – Housing Commissioner; before the High Court in Writ Petition No.9131 of 2008; and the claim submitted in Reference Petition before the learned Arbitral Tribunal under the 1983 Act are the same without any change;(vii) In the subsequent reference petition before the learned Arbitral Tribunal under the 1983 Act there was no reference to the earlier order passed by the High Court in Writ Petition No.9131 of 2008 referring the dispute between the parties for adjudication to Arbitrator – Housing Commissioner and the award passed by the Arbitrator – Housing Commissioner. Thus, there was a suppression on the part of the respondent – contractor;(viii) The order passed by the High Court dated 20.08.2008 passed in Writ Petition No.9131 of 2008 referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner as such was a consent order and thereafter the contractor participated in the arbitration proceedings before the Arbitrator – Housing Commissioner by submitting the claim is binding between the parties on the ground of issue estoppel.15. In the case of Bhanu Kumar Jain (supra) it is observed and held that a cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event, the bar is absolute in relation to all points decided save and except allegation of fraud and collusion.16. Apart from the fact that the award declared by the Arbitrator – Housing Commissioner was not challenged by the respondent – contractor, even, so long as the said award is not challenged before the higher forum the same is binding between the parties. Even the award or a nullity order has to be challenged before the appropriate forum/higher forum. In the present case it cannot be said that there was a total lack of jurisdiction of the Arbitrator – Housing Commissioner in passing the award as it was the High Court who passed the order with consent referring the dispute between the parties for the adjudication to the Arbitrator – Housing Commissioner. Therefore, unless and until it was challenged by the contractor before the higher forum, the respondent – contractor cannot be permitted to ignore and/or to avoid the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008.17. Even otherwise, it is required to be noted that what was filed before the High Court was the revision application filed by the contractor under Section 19 of the 1983 Act rejecting the reference petition as not maintainable.Therefore, as per Section 19 of the 1983 Act, Revision Application to the High Court shall be maintainable only against the award passed by the learned Arbitral Tribunal. Therefore, prima facie it appears that as such the order passed by the learned Arbitral Tribunal rejecting the reference petition was not maintainable as by order dated 27.02.2017, no award was passed by the Tribunal. However, as no such objection was raised before the High Court and no submission has been made by the parties, we rest the matter there.18. Even otherwise it is required to be noted that while passing the impugned judgment and order, the High Court has not set aside the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008. Therefore, technically speaking the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands even today. It is binding between the parties. So long as the award passed by the Arbitrator – Housing Commissioner dated 07.11.2008 stands, there cannot be any subsequent fresh proceeding with respect to the same claims which were considered and adjudicated by the Arbitrator – Housing Commissioner while passing the award dated 07.11.2008. So long as the said award stands it is binding between the parties.19. Even otherwise it is required to be noted that no objection was raised by the respondent – contractor before the Arbitrator – Housing Commissioner on the jurisdiction of the Housing Commissioner to act as an Arbitrator. On the contrary as observed hereinabove the order passed by the High Court referring the dispute between the parties for adjudication to the Arbitrator – Housing Commissioner was a consent order and the respondent - contractor conceded to and accepted the said order and submitted his claim before the Arbitrator – Housing Commissioner. The Arbitrator – Housing Commissioner also passed an award on the said claim. Therefore, as no objections were raised by the respondent – contractor at the appropriate stage, the award cannot be annulled subsequently. At the cost of repetition, it is observed that at no point of time the respondent – contractor had challenged the award passed by the Arbitrator – Housing Commissioner and as observed and held hereinabove even no court has set aside the award declared by the Arbitrator – Housing Commissioner dated 07.11.2008 and the same has attained finality. Therefore, the same is binding between the parties. Hence, the subsequent fresh reference petition before the learned Arbitral Tribunal under the 1983 Act for the very same claims which were raised before the Arbitrator – Housing Commissioner would not be maintainable at all. We agree with the view taken by the Arbitral Tribunal.