Case: The Navnirman Development Consultants (I) Pvt. Ltd Vs. The Divisional Commissioner &amp; President District Sports Complex Executive Committee

3. Brief facts need mention to appreciate the controversy involved in these appeals.4. TheGovernment agency at Pune invited tenders for construction of "sports complex" at Pune. Thewas one of the tenderers whose tender was accepted and accordingly thewas awarded contract for the said work.5. According to the appellant, they completed the work in terms of the Agreement dated 26.05.2003 and submitted the bills for the work done but the amount claimed in the bills was not paid by the respondent. This led to rising of the disputes between the appellant and the respondent regarding theof some bills of the appellant.6. Since the Agreement contained an arbitration clause for resolving all kinds of disputes arising between the parties in relation to the agreement and hence the appellant served the notices to the respondent and called upon them to appoint the Arbitral Tribunal as provided in clause 3.8 of the Agreement and refer the disputes regarding nonpayment of their bills to the Tribunal for its adjudication. The respondent, despite demand made by the appellant, failed to constitute the Arbitral Tribunal and, therefore, the appellant was constrained to file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") before the High Court praying therein for appointment of Arbitral Tribunal for deciding the disputes which had arisen between the parties.7. By order dated 12.08.2005, the High Court allowed the appellants application and appointed Arbitral Tribunal as per Clause 3.8 of the Agreement for deciding the disputes which had arisen between the parties. The Tribunal then embarked upon the reference and on 03.11.2006 passed an award in favour of the appellant and against the respondent for a total sum of Rs. 25,64,490/with interest payable at the rate of 18% p.a. This was followed by one corrigendum issued by the Tribunal in relation to the award to correct some arithmetical errors, which had crept in the award.8. Felt aggrieved, the respondent challenged the award before the District Judge, Pune by filing objections under Section 34 of the Act being Civil Misc. Application No 36 of 2007. The District Judge, by order dated 16.11.2007, allowed the respondents application in part and modified the award by reducing the awarded sum from Rs. 25,64,490/to Rs. 7,15,544/and in so modifying also gave some directions.9. Felt aggrieved, the appellant filed appeal under Section 37 of the Act before the High Court. By impugned order, the learned single Judge dismissed the appeal giving rise to first filing of the review petition by the appellant and consequent upon the dismissal of review, it gave rise to the filing of these appeals by way of special leave by the appellant(claimant) against the main order and review order.

Reasoning:
11. Having heard learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits.In our considered opinion, the need to remand the case to the High Court has occasioned due to the reason that the High Court while dismissing the appeal did not set out even the factual controversy properly much less in detail and nor dealt with any of the grounds taken by the parties in their pleadings and in appeal in support of their respective contentions.14. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which was expected of was that the order which decides the lis between the parties should have contained the brief facts of the case so as to know as to how the factual controversy arose and the grounds on which the action is impugned, the stand of the parties impugning and defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.15. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.16. We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when the appeal was called on for hearing, neither the counsel for the appellant nor the counsel for the respondent was present.17. In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in thisshall be construed as empowering the Court to dismiss the appeal on merits.