Judgment:
D.M. Patnaik, J.
1. 'The judgment is like a pair of scales and evidence like the weights but the will holds the balance in the hands; and even a slignt jerk will be sufficient in many cases to make the lighter scale heavier:
Wahately'.
2. Mr B. M. Patnaik, learned senior counsel for the Orissa Mining Corporation (for short, the 'Corporation') while strenuously of placing for transfer of the cases Under Section 24 of the Code of Civil Procedure in the file of Shri R. C. Patnaik, Additional District Judge, Bhubaneswar, on the ground of 'reasonable apprehension of denial of justice' submitted that the petitioner apprehends that the balance may be handled unevenly because of bias entertained by the Court in prejudging its case.
Mr. C. S. Vaidyanarhan, learned senior counsel for contesting opp. party No. 1, M/s. Klockner a foreign Company (hereinafter referred to as the 'Company'), on the other hand submitted that it is unbecoming on the part of the petitioner, a public sector undertaking under the direct control and patronage of the State of Orissa to seek transfer of cases on flimsy grounds which would erode the morale of the system of administration of justice and would vitally affect the 'dignity' of the whole set-up irrespective whether it is the same Court or any other Court.
3. Facts :
Chargechrorne The Orissa Mining Corporation proposed to set up its own plant at Barmical in the district of Keonjhar and to market charge chrome to foreign countries through the opposite party Company. A document was signed by both the parties on 20-4-1982 which stipulated that the Corporation shall supply 2.5 lakh metric tons of charge chrome to be produced from the above plant and the opposite party-Company would market the same as agent on payment of 4% commission on all concluded contracts.
On failure of the Corporation to set up its own plant, the Orissa Mining Corporation (Alloys) Limited, a separate entity, was incorporated on 25-3-1992 and the petitioner-Corporation held its entire share. A quantity of 1, 08,423.05 metric tons of charge chroms were supplied to foreign countries through the opposite party Company leaving a balance quantity of 1,41,571.95 metric tons. Subsequently by Ordinance No. 8 of 1991, the said charge chrome plant was taken over by the State of Orissa. The opposite party-Company laid a claim against the petitioner- Corporation as well as the State of Orissa for delivery of the balance qua- ntity of charge chrome or to indemnify the Company for the loss amounting to Do lar 2,249,938.42 U S. Dollars equivalent to rupees ten crores. It also threatened the Corporation that unless this was done, the dispute would be referred to the Arbitrator, the International Chambers of Commerce at London to which th3 parties had mutually agreed to under the document.
4. The petitioner-Corporation filed Title Suit No. 231 of 1992 in the Court of the Civil Judge (Senior Division), Bhubaneswar for a declaration that the petitioner-Corporation was not liable to deliver to the opposite party-Comoany any charge chrome or indemnify the loss in any form and also prayed for other consequential reliefs including the prayer for injunction. The State of Orissa also filed Title Suit No. 152 of 1993 for the same relief as that of the petitioner-Corporation. The main stand of the petitioner-Corporation is that the document dated 20-4-1992 was not an agreement but arranngement'. It was void and inoperative and even if there was any stipulation, they stood abandoned after the Orissa Mining Corporation (Alloys) Limited supplied charge chrome under the 'arrangement'.
5. In the suit, the Corooration's prayer for temporary injunction to restrain the opposite party-Company from referring the dispute to the arbitrator was refused by the lower Court. The sama was also refused by the learned Additional Distrct Judge, Bhubaneswar presided by Shri R. C. Patnaik in Misc. Appaal No. 25 of 1993 by order dated 19-4-1993. This order was challenge by the Corporation before this Court in Civil Revision No. 164 of 1993 and this Court, by order dated 13-10-1993, allowed the revision directing the Company not to proceed with arbitration until disposal of the suit.
6. The learned Civil Judge, Bhubaneswar, by order dated 26-3-1994 in Misc. Case No. 75 of 1993, rejected the plaint under Order 7, Rule 11 of the Code of Civil Procedure holding that the suit was barred Under Section 32 of the Arbitration Act and also on the same day, in Misc. Case No. 425 of 1993, stayed the suit Under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961.
The petitioner Corporation filed Title Appeal No. 40 of 1994 as well as Civil Revision No. 19 of 1993 before the learned Additional District Judge, Bhubaneswar against the respective orders of rejection of the plaint and stay of the suit.
Aggrieved by the order of stay of its suit, the State of Orissa also moved in Misc, Appeal No. 47 of 1994 before the learned Additional District Judge, Bhuaneswar. The Stats has also tiled several miscellaneous judicial cases before this Court for transfer of its cases from the file of the learned Additional District Judge.
7. The main thrust of argument of Mr. B. M Patnaik, on behalf of the Corporation as well as the State is that an inference of bias on the part of the learned Additional District Judge would be irresistible the way the said Court disposed of Misc. Appeal No. 25 of 1993. Mr. PatnaiK advanced the following reasons for such an inference.
(i) The Court while deciding the question of temporary injunction in Misc. Appeal No. 25 of 1993 did not take notice of the ' decision reported in AIR 1971 SC 1 M/s. V/O Tractoroexport v. M/s. Tarapore and Co., Madras and Anr..
(ii) The Court instead of dealing the prima face nature of the case, gave its finding on all the material issues between the parties raised in the suit as if it was deciding the case finally; and
(iii) Even though the petitioner-Corporation denied its liablity and filed the suit for various relief's, the learned Additional District Judge gave a final decision that the plaintiff had no locus standi to file a suit.
Repelling this argument of Mr. Patnaik, Mr. C. S. Vaidyanathan, learned counsel for the opposite party-Company, rsferring to the decisions reported in AIR 1974 SC 2192, Samshar v. State, followed in the case of Bennet Coleman and Co. Limited v. Janaki Ballav Patnaik and Anr., 1987 (I) OLR 244 urged that it would not be proper to transfer a case from one Court to another unless the apprehension is a reasonable one and not fanciful, imaginary and suspicious beliefs which cannot be equated with 'reasonable apprehension'.
8. In my view, they cannot be considered as grounds for entertaining a bias as claimed by Mr, Patnaik, It is well known that lower Courts work under various constraints and limitations. Complicated and prolonged arguments are advanced by counsel to substantiate a particular point in issue sometimes touching certain important questions of law. The Courts do work in anxiety to see that each and every point raised by the counsel are met after due discussions. In their anxiety to do so, they may omit to state something or state something which may not be strictly necessary for decision of material issua and in either case that would at best amount to an error or it can be said to be a wrong committed by the Court, but it cannot be said that Courts in all such cases entertain a bias or prejudice intentionally to frustrate the cause of the party affected. In such case, it has been held by the apex Court in the case of Abrahim Aboobakar v. Custodian General of Nyacuees Property, New Delhi, AIR 1952 SC 319, that :
'...once it is held that the Court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a Court has jurisdiction to decida rightly as well as wrongly.'
Therefore, if the learned Additional District Judge gave conclusive opinion on important issues which Gould have been only given at the time of the final decision of the suit, it may be an error but in the absence of anything else, that itself could not amount to saying that the Court had entertained a bias by way of prejudging the case. That apart, a judicial order in the absence of anything else cannot legitimately be the ground for transfer of the case vide decision reported in AIR 1987 MP 176, Ratan v. Suresh Kumar, referred to by the learned counsel for the opposite party-Company.
Secondly, merely because the decision in the injunction matter went against the petitioner-Corporation, there cannot be any 'reasonable apprehension' of denial of justice in the matter now pending before the Court below which relates to a different matter in the correctness or otherwise of the order rejecting the plaint under Order 7, Rule 11 of the Code of Civil Procedure and staying the suit on the prayer of the opposite party Under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. In this regard, the case referred by Mr. Baidyanathan reported in AIR 1976 Delhi 184, Krishan Kanaya and Anr. v. Vijaya Kumar and Ors., is accepted as laying down the correct proposition of law.
9. Further. I may point out that in Civil Revision No. 164 of 1993, while deciding the correctness of the decision in Mire Appeal No. 25 of 1993 which is subject of criticism this Court in no uncertain terms observed that the Court acted beyond its jurisdiction by giving final conclusion with regard to some of the main issues having important beatings for decision of the suit instead of judging the prima facie nature of the case in an injunction matter. A repetition of such observation is unnecessary and I hope, this is sufficient to keep the Court on guard against entertaining any bias whatsoever, though going through the order in that misc. appeal I am of the view that the Court did not give such finding after having entertained a bias against the petitioner- Corporation.
Therefore, the prayer for transfer of the cases on this ground cannot be allowed.
10. The faint and the alternative argument of Mr. Patnaik to transfer the cases to this Court rather merits consideration in view of what has been decided in the case of Bannet Coleman and Co. Limited (supra).
The reasons given for transfer in the case of Bennet Coleman did not find favour with the Division Bench of this Court but following the principles laid down by the Supreme Court in AIR 1979 SC 1909. Baselium v. Paulose, this Court allowed the prayer for transfer taking into consideration the high valuation of the suit, convenience of the parties, the nature of the case giving rise to various 'complex questions' involved.
11. In the case at hand, the suit relates to allegation of breach of contract and its consequences, I am sure it will not create any problem for the Courts below to handle the original suit and appreciate the points involved for decision and I am of the view at that stage the matter would not be that complicated, the way it has turned to be so in the present situation.
The plaint has been rejected on the ground that the suit is barred under the provisions of Section 32 of the Arbitration Act. The suit has also been stayed at the instance of the opposite party-Company Under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. In the cases lying before the teamed Additional District Judge the matter for decision would necessarily arise for interpretation of these provisions and their application to reject the plaint under Order 7, Rule 11 CPC and stay Under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. In my view, it will be proper for this Court to decide the complex questions and lay down the law which will make the work of the lower Courts easier to dispose of the main suit. The transfer to this Court at this stage numbering about 8 cases now before the learned Additional District Judge would not only shorten the life, of litigation between the two strong combating parties, but at the same time it would relieve the lower Courts from the burden and web of intricate arguments those are likely to be advanced by the learned counsel for the parties. That apart, this will also prevent the multiplicity of proceedings between the parties. Therefore, it is rather thought expedient and convenient for all concerned to get all the cases transferred to this Court, except Title Suit No. 152 of 1993, but proceedings in that suit shall 'be stayed until further orders of this Court.
12. In the result. Civil Revision Nos. 19, 20, 24 and 25 of 1994, Misc. Appeal Nos. 46, 47 and 48 of 1994 and Title Appeal No. 40 of 1934 pending before the Additional District Judge, Bhubaneswar, be transferred to this Court.
MJC No. 165 of 1994 filed by the State of Orissa is dismissed. This common order disposes of all the MJ Cs before this Court. In all the cases parties to bear their own cost.