THE NAVNIRMAN DEVELOPMENT CONSULTANTS (I) PVT. LTD. versus THE DIVISIONAL COMMISSIONER & PRESIDENT DISTRICT SPORTS COMPLEX EXECUTIVE COMMITTEE
[2017] 6 S.C.R. 347, Supreme Court of India, 2017
Outcome: Case Partly allowed (Granted)
Segment: Ratio
[2017] 6 S.C.R. 347 
• THE NAVNIRMAN DEVELOPMENT 
CONSULTANTS (I) PVT. LTD. 
v. 
THE DIVISIONAL COMMISSIONER & PRESIDENT DISTRICT 
SPORTS COMPLEX EXECUTIVE COMMITTEE 
(Civil Appeal Nos. 8408-09 of2017) 
JULYOS,2017 
[ABHAY MANOHAR SAPRE AND R. BANUMATHI, JJ.J 
A 
B 
Arbitration and Conciliation Act, 1996 - Arbitration award -
Pronouncement of, in favour of appellant - On challenge by 
respondent, District Judge modified the award by reducing the 
C 
awarded sum - Appeal thereagainst as also review, dismissed by 
the High Court - On appeal, held: 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 - High Court erred in not recording any finding much less 
D 
reasoned finding keeping in view the stand of the parties taken in 
the pleadings and the grounds of appeal -Also erred in not pointing 
out as to why the order of the District Judge is legally sustainable -
High Court decided the appeal in the absence of both parties - In 
such situation, provisions of Or. XL! r. 17 CPC got attracted and, 
thus, the High Court should have taken recourse to the 
E 
powers u/Or. XL! r. 17 for passing appropriate orders - Said 
approach and the cryptic reasoning of the High Court cannot be 
accepted - Thus, the impugned order is set aside and case is 
remanded back to the High Court for deciding the appeal afresh 
on merits. 
Partly allowing the appeals, the Court
HELD: 1.1 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 
F 
in their pleadings and in appeal in support of their respective G 
contentions. In order to appreciate the factual and legal 
controversy involved in the tis, the least which was expected of 
was that the order which decides the tis between the parties should 
have contained the brief facts of the case and the grounds on 
which the action is impugned, the stand of the parties impugning 
H 
347
348 
SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
A 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 /is, and lastly, the brief reasons as to why the case 
of one party deserves acceptance or rejection, as the case may 
be. This enables the superior Court to examine the legality of 
B the decision in its proper perspective in its appellate jurisdiction. 
[Paras 13-15] [351-C-F] 
1.2 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. In such situation, provisions of Or. 
C XLI r. 17 CPC got attracted and, therefore, the High Court should 
have taken recourse to the powers under Or. XLI r. 17 for passing 
appropriate orders as contemplated in r. 17. In any event, the 
dismissal of appeal being essentially under Or. XLI r. 17, the 
appellant should have taken recourse to the remedy available 
D 
under Or. XLI r. 19 by filing application to the High Court praying 
therein for readmission of their appeal by making out the sufficient 
cause for their non-appearance on the date when the appeal was 
listed for hearing instead of filing this appeal against the impugned 
order before this Court. [Para 16-18) [351-F-H ; 352-A-B) 
E 
F 
1.3 The High Court erred in not recording any finding much 
less reasoned finding
keeping in view the stand of the parties 
taken in the pleadings and the grounds of appeal. The High Court 
also erred in not pointing out as to why the order of the District 
Judge is legally sustainable calling no interference therein. If 
the High Court decided to embark upon the merits of the appeal 
then it should have recorded findings by dealing with all the issues 
arising in the case. The said approach and the cryptic reasoning 
of the High Court cannot be accepted. The impugned order is 
set aside and the case is remanded back to the High Court for 
deciding the appeal afresh on merits in accordance with law. [Para 
G 19-20) [352-C-D] 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8408-
8409of2017. 
From the Judgment and Order dated 13.09.2013 in Arbitration 
Appeal No. 9 of2008 and 04.09.2014 in Review Petition No. I of2014 
H 
of the High Court of Judicature at Bombay.
- ' 
NAVNIRMAN DEV. CONSULTANTS. v. DIV. COMM.& PRESIDENT DISTT. 
349 
SPORTS COMPLEX EXEC COMMITTEE 
Ms. Suruchi Aggarwal, Adv. for the Appellants. 
The Judgment of the Court was delivered by 
ABHAY MANOHAR SAPRE, J. I. Leave granted. 
A 
2. These appeals are filed against the final judgments and orders 
dated 13.09.2013 inArbitrationAppeal No.9 of2008 anddated04.09.2008 
B 
in Review Petition No. I of2014 passed by the High Court of Judicature 
at Bombay whereby the Arbitration Appeal and the Review Petition 
were respectively dismissed. 
3. Brief facts need mention to appreciate the controversy involved 
in these appeals. 
c 
4. The respondent-a Government agency at Pune invited tenders 
for construction of "sports complex" at Pune. The appellant-Company 
was one of the tenderers whose tender was accepted and accordingly 
the appellant-Company was awarded contract for the said work. 
5. According to the appellant, they completed the work in terms of D 
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 the non-payment of some bills of the appellant. 
6. Since the Agreement contained an arbitration clause for 
E 
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 
non- payment 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 
appellant's 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 
F 
G 
H
350 
SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
A 
03.11.2006 passed an award in favour of the appellant and against the 
respondent for a total sum ofRs.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. 
B 
8. Felt aggrieved, the respondent challenged the award before 
. C 
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 respondent's 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 
D 
appellant( claimant) against the main order and review order. 
10. Heard learned counsel for the appellant. None appeared for 
the respondent though served. 
11. Having heard learned counsel for the appellant and on perusal 
E 
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. 
F 
G 
12. The impugned order reads as under: 
"1. The award has been passed on 3'd November, 2006 
in favour of the appellant for Rs.25.64 lacs. The appeal 
under Section 36 has been partly allowed on 16'h 
November, 2007. Only the award for the amount of 
Rs.11.90 lacs under bill No. 1 has been set aside and the 
respondent herein has been directed to pay the appellant 
Rs.7.14 lacs instead constituting 75% of that amount. 
The amount has to be paid with interest specified in the 
impugned order along with costs. 
2. The ambit of this appeal is, therefore, extremely 
narrow.
NAVNIRMAN DEV. CONSULTANTS. v. DN COMM.& PRESIDENT DISTT. 
351 
SPORTS COMPLEX EXEC COMMITTEE [ABHAYMANOHARSAPRE, J.] 
The award passed in favour of the appellant herein can 
A 
be executed save and except 114'~ of the amount of bill 
No.1. 
3. The appellant has not shown how the order in appeal 
setting aside the award passed to the above extent calls 
for interference in a further appeal. Arbitration Appeal 
B 
is dismissed." 
13. 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 c 
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 /is, the least which was expected of 
was that the order which decides the /is between the parties should 
D 
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 actioq, 
the submissions of the parties in support of their stand, legal provisions, 
if any, applicable to the controversy involved in the !is, and lastly, the 
brief reasons as to why the case of one party deserves acceptance or 
E 
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. 
F 
17. In such situation, provisions of Order 41 Rule 17 of the Civil 
Procedure Code, 1908 got attracted and, therefore, the High Court should 
G 
have taken recourse to the powers under Order 41 Rule 1 7 for passing 
appropriate orders as contemplated in Rule 17. Indeed the explanation 
appended to Rule 17 in clear terms provides that nothing in this sub-rule 
shall be construed as empowering the Court to dismiss the appeal on 
merits. 
H
352 
SUPREME COURT REPORTS 
[2017] 6 S.C.R. 
A 
18. In any event, the dismissal of appeal being essentially under 
Order 41 Rule 17, the appellant herein should have taken recourse to the 
remedy available under Order 41 Rule 19 by filing application to the 
High Court praying therein for readmission of their appeal by making 
out the sufficient cause for their non-appearance on the date when the 
B 
appeal was listed for hearing instead of filing this appeal against the 
impugned order before this Court. 
19. Be that as it may, the High Court erred in not recording any 
finding much less reasoned finding keeping in view the stand of the 
parties taken in the pleadings and the grounds of appeal. The High Court 
c also erred in not pointing out as to why the order of the District Judge is 
legally sustainable calling no interference therein. If the High Court 
decided to embark upon the merits of the appeal then it should have 
recorded findings by dealing with all the issues arising in the case. It 
was, however, not done and hence it calls for interference by this Court. 
D 
20. In the light of foregoing discussion, we cannot countenance 
the approach and the cryptic reasoning of the High Court and are, 
therefore, constrained to set aside the impugned order and remand the 
case to the High Court for deciding the appeal afresh on merits in 
accordance with law. 
21. Since we have formed an opinion to remand the case, we 
E 
have refrained from recording any finding on
merits on any of the issues 
arising in the case. 
22. In view of foregoing discussion, the appeals succeed and are 
accordingly allowed in part. The impugned order is set aside. The appeal 
out of which these appeals arise is restored to its file. The learned single 
F 
Judge of the High Court is requested to decide the appeal on merits in 
accordance with law uninfluenced by any of our observations. 
23. Since the matter is old, we request the Single Judge to decide 
the appeal expeditiously after serving notice of hearing of the appeal to 
' "· 
the parties because the respondent despite service did not appear today 
G before this Court. 
.. 
" 
Nidhi Jain 
Appeals partly allowed.