Modi Construction Company Vs. Rites Limited a Government of India Enterprise and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. orderp.k. balasubramaniyan, j.1. in the light of the decision in konkan railway corporation ltd. and anr. v. rani construction pvt. ltd., (2002) 2 scc 388, it is for the arbitrator to decide on the tenability or otherwise of the various other claims that may be raised by one or the other parties before the arbitrator. therefore, no adjudication by this court in this application under section 11(6) of the arbitration and conciliation act, 1996 is contemplated. counsel for the respondents points out that in terms of clause 63, governing the arbitration, four names have been suggested to the petitioner so as to enable him to choose one among them and the arbitral tribunal is to consist of that person and another to be nominated by the respondents and both of them together are to nominate the third member. when this statement was made, i put it to counsel for the petitioner, whether he cannot choose one among the four as his nominee so that the respondents can nominate its arbitrator and then two arbitrators then can choose the third arbitrator and . proceed with the arbitration. counsel, after consulting his client, submitted that shri h.l. chaudhary, gm/ts, included as no. 2 in the list of four can be the arbitrator chosen by the petitioner. i accept the said statement and sri. h.l. chaudhary, gm/ts will be one of the arbitrators. i direct the respondents to nominate their arbitrator within a month from today. both the arbitrators together will then nominate the presiding arbitrator as envisaged by the arbitration clause. the petitioner will be free to raise all his claims before the arbitrators contemplated by the decision referred to above and it will be open to the respondents to raise all their objectionsbefore the arbitrators and it will be the duty of the arbitrators to decide all those claims and objections. once the presiding arbitrator is nominated and the arbitral tribunal enters upon the reference, the tribunal will complete the arbitration proceedings within eight months of entering upon the reference.the application is order as above.

Judgment:
ORDER

P.K. Balasubramaniyan, J.

1. In the light of the decision in Konkan Railway Corporation Ltd. and Anr. v. Rani Construction Pvt. Ltd., (2002) 2 SCC 388, it is for the Arbitrator to decide on the tenability or otherwise of the various other claims that may be raised by one or the other parties before the Arbitrator. Therefore, no adjudication by this Court in this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 is contemplated. Counsel for the respondents points out that in terms of Clause 63, governing the arbitration, four names have been suggested to the petitioner so as to enable him to choose one among them and the Arbitral Tribunal is to consist of that person and another to be nominated by the respondents and both of them together are to nominate the third member. When this statement was made, I put it to counsel for the petitioner, whether he cannot choose one among the four as his nominee so that the respondents can nominate its Arbitrator and then two Arbitrators then can choose the third Arbitrator and . proceed with the arbitration. Counsel, after consulting his client, submitted that Shri H.L. Chaudhary, GM/TS, included as No. 2 in the list of four can be the Arbitrator chosen by the petitioner. I accept the said statement and Sri. H.L. Chaudhary, GM/TS will be one of the Arbitrators. I direct the respondents to nominate their Arbitrator within a month from today. Both the Arbitrators together will then nominate the Presiding Arbitrator as envisaged by the Arbitration Clause. The petitioner will be free to raise all his claims before the Arbitrators contemplated by the decision referred to above and it will be open to the respondents to raise all their objectionsbefore the Arbitrators and it will be the duty of the Arbitrators to decide all those claims and objections. Once the Presiding Arbitrator is nominated and the Arbitral Tribunal enters upon the Reference, the Tribunal will complete the arbitration proceedings within eight months of entering upon the reference.

The application is order as above.