Oral Judgment:
Heard Ms. S. Mordekar, the learned Additional Government Advocate for the appellant. None for the respondent though served.
2. The above appeal challenges the judgment dated 28/01/2009 passed by the learned District Judge, South Goa at Margao in Civil Miscellaneous Application No.99/1998, whereby the application under Section 34 of the Arbitration and Conciliation Act, 1996 filed by the appellant came to be dismissed.
3. Brief facts of the case are that in view of the dispute between the parties an Arbitrator came to be appointed on 7/05/1996 to adjudicate upon such dispute raised by the respondents. The submissions were duly raised before the sole Arbitrator and an award came to be passed on 8/11/1997 adjudicating upon the claim put forward by the respondents. An award was filed before the learned Civil Judge on 24/12/1997 and the notice came to be issued to the appellant. The appellant raised objection to the award under the provisions of Arbitration Act, 1940. The proceedings of the arbitration came to be closed by the learned Judge on 7/05/1998. A petition was thereafter filed by the appellant before the learned Additional District Judge, Margao raising different objections to the arbitral award. The learned Additional District Judge by judgment dated 21/03/2002 dismissed the objections filed by the appellant inter alia on the ground that the time limit was over and, as such, the question of extending the period to file such objections would not arise. An appeal came to be preferred by the appellant before this Court challenging the judgment passed by the learned District Judge which came to be dismissed by this Court on 26/09/2002, on the ground that Section 14 of the Limitation Act, 1963 is not available in view of Section 34(3) of the Arbitration Act, 1996. A Special Leave Petition came to be filed by the appellant before the Hon'ble Supreme Court challenging the judgment passed by this Court which was allowed by judgment dated 5/07/2006 and the matter was remanded to the learned District Judge to decide the dispute on merits. After hearing the parties, the learned District Judge by judgment dated 28/01/2009 passed the impugned judgment dismissing the objections filed by the appellant. Being aggrieved by the said judgment the appellant has preferred the above appeal.
4. Ms. S. Mordekar, the learned Additional Government Advocate appearing for the appellant has assailed the impugned judgment on the ground that the learned Judge has misconstrued the judgment passed by the Apex Court disposing of the special leave petition no.1458/2004 whereby the earlier judgment passed by the learned District Judge was also quashed and set aside and the matter was remanded to the learned Judge to decide the dispute on merits afresh. The learned Counsel further pointed out that the learned Judge whilst passing the impugned order though has condoned the delay in filing the objections, in view of the provisions of Section 14 of the Limitation Act, 1963, nevertheless failed to adjudicate the dispute on merits. The learned Counsel has taken me through the operative part of the judgment of the Apex Court and pointed out that once the judgments of the Courts below were quashed and set aside the question of relying upon such judgments to hold that the said findings cannot be reagitated by the appellant is totally misplaced and deserves to be quashed and set aside. The learned Counsel further pointed out that the dispute between the parties has not been adjudicated on merits and, as such, the impugned judgment deserves to be quashed and set aside.
5. The respondents though served failed to remain present. Even when the matter was called out on 7/03/2012, 19/04/2012 and 10/05/2012, none appeared for the respondents.
6. Having heard the learned Counsel and on perusal of the record it would be appropriate to subscribe the relevant portion of the judgment of the Apex Court dated 5/07/2006 passed in Special Leave Petition no.1458/2004. The Apex Court has held thus:
“... We set aside all the judgments/order and remand all these cases back to the Trial Court/District Court for deciding the application under Section 14 of Limitation Act on merit after hearing both the parties and in case the delay is condoned then the case should be decided on merits after hearing all the concerned parties. All the appeals are allowed. No order as to costs.”
7. On bare perusal of the said judgment of the Apex Court, the judgments/orders came to be quashed and set aside and the matter was remanded back to the trial Court/District Court for deciding the application under Section 14 of the Limitation Act on merits after hearing both the parties and in case the delay was condoned the case was to be decided on merits after hearing all the concerned parties. Once the Apex Court has set aside the judgment of the learned District Judge the question of relying upon the findings rendered therein to come to the conclusion that the appellant are not entitled to reagitate the findings cannot be accepted. The learned District Judge has totally misconstrued the judgment of the Apex Court and effect thereof and has erroneously refused to decide the objections raised by the appellant under Section 34 of the Arbitration Act, 1996 afresh on merits after hearing the parties. Having failed to do so, the impugned judgment passed by the learned Judge cannot be sustained and deserves to be quashed and set aside. The learned Judge was not justified to pass the impugned judgment and refuse to consider the dispute raised by the parties on merits despite of the directions of the Apex Court. As such, there is no other alternative then to quash and set aside the impugned judgment dated 28/01/2009 and remand the matter back to the learned District Judge to decide the objections filed by the appellants under Section 34 of the said Act afresh after hearing the parties in accordance with law.
8. In view of the above, I pass the following order;
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment dated 28/01/2009 is quashed and set aside.
(iii) Civil Miscellaneous Application No.99/1998 dated 6/06/1998 is restored to the file of the learned District Judge, South Goa, Margao.
(iii) The learned Judge is directed to decide the said application afresh on merits after hearing the parties in accordance with law. All contentions of the parties on merits are left open.
(iv) The appeal stands disposed of accordingly.
(v) The parties are directed to appear before the learned Judge on 23/07/2012 at 10.00 a.m.