Ami Chand Vs. Food Corporation of India - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. orderr.s. madan, j.1. this regular second appeal no. 594 of 1992 is against the judgment and decree dated 23.1.1992 passed by the additional district judge, chandigarh whereby he accepted the appeal and dismissed the suit of the plaintiff decreed by the trial court with costs.2. in brief the facts of the case are that ami chand - plaintiff / appellant was carrying on business of transport and in the course of business of transport and in course of business sent an offer to the respondent in response to respondent's invitation to tender by submitting a tender for performing service of loading, unloading and transport at pa-traon, district patiala. the said tender was open for acceptance upon 29.5.1979 and the tenders were to be opened on 30.4.1979 at 3.00 p.m. the tenders were opened on the due date in the presence of the plaintiff and others and as the plaintiff was the only tenderer, it was announced that the tender being sole tender will not be accepted and fresh tenders will be invited in due course. it was on this count that the plaintiff sent a letter on 7.5.1979 requesting the senior regional manager, food corporation of india, chandigarh to refund the amount of rs. 5000/-, which was sent by him along with tender, under postal certificate but to his utter surprise, the respondent-food corporation of india purported to accept the offer on 12.6.1979 when the offer was non-existent, firstly its validity period expired on 29.5.1979 and secondly, the tender was rejected on 30.4.1979 when on opening day there was only one tender and it was announced that only fresh tenders will be invited. the appellant thereafter visited the food corporation of india at patiala and chandigarh for the refund of the amount but to no effect.3. it is further the case of the appellant that without considering or realising the fact that the arbitration clause is included in the contract which was never concluded nor ever ripened into a contract, there in law and fact existed no arbitration agreement, still the managing director of food corporation of india purported to appoint sh. p.s. kaicker as sole arbitrator without notice or consent of the plaintiff. the said arbitrator has resigned and sh. p.c. rao was appointed as the sole arbitrary on 21.12.1982 without the consent or notice of the plaintiff under a non-existent agreement and the so-called appointment of above arbitrators on 17.6.1982 and 21.12.1982 respectively was an invalid appointment under a non-existent agreement. the plaintiff thus prayed that the decree of non-existence and invalidity and ineffectiveness of the arbitration clause xix and the determination be made under section 33 arbitration act, 1940; that a decree for rs. 5,000/- against food corporation of india be passed in favour of petitioner-plaintiff, pendent lite and future interest @ 18% per annum be also paid along with the cost of proceedings.4. the aforesaid suit was contested by the respondent- food corporation of india in terms of written statement dated 25.11.1987 whereby it has reiterated that the tender was accepted @ 67% above schedule of rate vide food corporation of india, regional officer, telegram no.f-10-.17/patran/79 dated 12.6.1979 for two years and it was pleaded therein that the plaintiff is bound by the terms of the contract. therefore, the earnest money could not be refunded. it was also pleaded therein that the food corporation of india was competent to appoint an arbitrator. mr. r. lakshmanan was appointed in accordance with the terms and conditions of the contract and that the petition is not maintainable under section 33 of the arbitration act. he thus prayed for the dismissal of the suit.5. replication was filed by the plaintiff reiterating the case as set up in the plaint.6. oh the pleading of the parties, the parties went to the trial on the following issues:1. whether there exists a valid arbitration agreement between the parties? opa2. relief.both the parties had adduced evidence in support of their contentions.7. after hearing the learned counsel for the parties and persuing the evidence on record, the learned trial court decreed the suit of the plaintiff with costs against defendant-respondent holding that no valid agreement came into existence between the parties and the defendant-respondent is liable to refund the amount of rs. 5,000/-, the earnest money deposited by him with the defendant along with the tender form.8. aggrieved by the aforesaid judgment and decree of the trial court, the defendant-respondent filed an appeal in the court of the additional district judge, chandigarh, who vide his order dated 23.1.1992 accepted the appeal of the defendant-respondent and dismissed the suit of the plaintiff.9. i have heard the learned counsel for the parties and carefully gone through the record of the case.10. learned counsel for the appellant refers to para no. 3 of the plaint wherein it was pleaded by the plaintiff that the tender was opened on the due date in the presence of the plaintiff and others and the plaintiff's tender being the sole tender, his tender was not accepted and the fresh tenders would be invited as a consequent of which he sent a letter dated 7.5.1979 under the postal cover to the senior regional manager, food corporation of india, chandigarh to refund the amount of rs. 5,000/-. the period mentioned in the aforesaid tender was to expire on 29.5.1979 but to his utter surprise, the respondent-food corporation of india conveyed to the plaintiff the acceptance of the offer dated 12.6.1979 by senior regional manager of food corporation of india through a telegram ex.r-2.11. the plea of the respondent was that the senior regional manager of food corporation of india had the power to extend the date of the tender by a fortnight and such extension shall be binding on the tenderer. he referred to the tender form ex.r1 where the date of opening of the tender has been recorded as 30.4.1979 at 3.00 p.m. and the tender was open for acceptance upto 29.5.1979.12. according to the learned counsel, the senior regional manager could not extend the period by 15 days by a fortnight after the expiry of the period of limitation. once the period of limitation comes to an end, the extension could be made before the expiry of the period prescribed, which is not the case of the respondent in the present case. even the order passed by the senior regional manager of food corporation of india has also not been produced by the respondent so as to show that the tender was accepted by him within the prescribed period. the telegram ex.r is stated to have been dispatched on 14.6.1979. no postal receipts have been placed on record. therefore, conveying the photocopy of the telegram px.r2 which bears the endorsement that the same was sent to the plaintiff on 14.6.1979 after the expiry of the period of limitation alleged to have been exercised by the senior regional manager is of no consequence.13. learned counsel was trying to convenience that in fact no agreement exists between the parties. therefore, subsequent appointment of arbitrator made by the respondent-defendant and any award passed by him, is not binding on the plaintiff.14. on the other, it was argued that under clause c, there is a note-i wherein the power has been conferred upon the senior regional manager of food corporation of india that he has the power to extend the period of acceptance of tender by fifteen days. the discretion to extend the date by a fortnight was binding on the tenderer. therefore, all subsequent proceedings initiated by the arbitrator are binding on the plaintiff.15. after hearing the learned counsel for the parties and going through the pleadings of the parties, the respondent-defendant has not denied the fact that the plaintiff was the only tenderer, who submitted the tender on 30.4.1979. it is admitted that the tender was opened on 30.4.1979 and that the plaintiff being the only tenderer, the same was not accepted by the defendant on its opening and nor he was informed about its acceptance. it was on account of this that the plaintiff applied for the referred of his earnest money of rs. 5,000/- vide a letter ex.p-1. he also placed on the record the postal certificate etc. so as to show that the same has been dispatched to the addressee.16. the telegram ex.r2 is dated 14.6.1979 through which the plaintiff was alleged to have been conveyed the acceptance of his tender on 12.6.1979 could not be termed that a valid agreement exists between the parties because the said telegram ex.r2 bears some endorsement dated 14.6.1979. the said telegram was sent on 12.6.1979, 14.6.1979 or 27.6.1979. no postal receipt has been produced by the defendant. even the address given in the tender ex.r1 and the letter ex.r2 are different and sent to different addressee. all the steps show that the defendant-respondent was trying to cover up its inefficiency by not accepting the tender in time.17. in this view of the matter, it can be safely concluded that no valid agreement came into existence between the parties. the period mentioned in the tender had already expired before it could be accepted. therefore, the learned trial court has rightly concluded that there exists no valid agreement between the parties.18. the observations made by the appellate court that the plaintiff was conveyed the acceptance of the tender through telegram ex. r1 is sufficient to hold that there exists a valid agreement between the parties is not sustainable. accordingly, the findings recorded by the learned additional district judge on issue no. 1 in favour of respondent are set aside and the findings recorded by the learned subordinate judge on issue no. 1 in favour of the plaintiff are affirmed. as a consequence, this regular second appeal no. 594 of 1992 is accepted. the impugned order under appeal passed by the learned additional sessions judge, chandigarh is set aside and the decree passed by the learned subordinate judge in favour of the plaintiff is upheld with costs.

Judgment:
ORDER

R.S. Madan, J.

1. This Regular Second Appeal No. 594 of 1992 is against the judgment and decree dated 23.1.1992 passed by the Additional District Judge, Chandigarh whereby he accepted the appeal and dismissed the suit of the plaintiff decreed by the trial Court with costs.

2. In brief the facts of the case are that Ami Chand - plaintiff / appellant was carrying on business of transport and in the course of business of transport and in course of business sent an offer to the respondent in response to respondent's invitation to tender by submitting a tender for performing service of loading, unloading and transport at Pa-traon, District Patiala. The said tender was open for acceptance upon 29.5.1979 and the tenders were to be opened on 30.4.1979 at 3.00 p.m. The tenders were opened on the due date in the presence of the plaintiff and others and as the plaintiff was the only tenderer, it was announced that the tender being sole tender will not be accepted and fresh tenders will be invited in due course. It was on this count that the plaintiff sent a letter on 7.5.1979 requesting the Senior Regional Manager, Food Corporation of India, Chandigarh to refund the amount of Rs. 5000/-, which was sent by him along with tender, under Postal Certificate but to his utter surprise, the Respondent-Food Corporation of India purported to accept the offer on 12.6.1979 when the offer was non-existent, firstly its validity period expired on 29.5.1979 and secondly, the tender was rejected on 30.4.1979 when on opening day there was only one tender and it was announced that only fresh tenders will be invited. The appellant thereafter visited the Food Corporation of India at Patiala and Chandigarh for the refund of the amount but to no effect.

3. It is further the case of the appellant that without considering or realising the fact that the arbitration clause is included in the contract which was never concluded nor ever ripened into a contract, there in law and fact existed no arbitration agreement, still the Managing Director of Food Corporation of India purported to appoint Sh. P.S. Kaicker as Sole Arbitrator without notice or consent of the plaintiff. The said arbitrator has resigned and Sh. P.C. Rao was appointed as the sole Arbitrary on 21.12.1982 without the consent or notice of the plaintiff under a non-existent agreement and the so-called appointment of above Arbitrators on 17.6.1982 and 21.12.1982 respectively was an invalid appointment under a non-existent agreement. The plaintiff thus prayed that the decree of non-existence and invalidity and ineffectiveness of the Arbitration Clause XIX and the determination be made under Section 33 Arbitration Act, 1940; that a decree for Rs. 5,000/- against Food Corporation of India be passed in favour of petitioner-plaintiff, pendent lite and future interest @ 18% per annum be also paid along with the cost of proceedings.

4. The aforesaid suit was contested by the respondent- Food Corporation of India in terms of written statement dated 25.11.1987 whereby it has reiterated that the tender was accepted @ 67% above schedule of rate vide Food Corporation of India, Regional Officer, Telegram No.F-10-.17/Patran/79 dated 12.6.1979 for two years and it was pleaded therein that the plaintiff is bound by the terms of the contract. Therefore, the earnest money could not be refunded. It was also pleaded therein that the Food Corporation of India was competent to appoint an Arbitrator. Mr. R. Lakshmanan was appointed in accordance with the terms and conditions of the contract and that the petition is not maintainable under Section 33 of the Arbitration Act. He thus prayed for the dismissal of the suit.

5. Replication was filed by the plaintiff reiterating the case as set up in the plaint.

6. Oh the pleading of the parties, the parties went to the trial on the following issues:

1. Whether there exists a valid arbitration agreement between the parties? OPA

2. Relief.

Both the parties had adduced evidence in support of their contentions.

7. After hearing the learned Counsel for the parties and persuing the evidence on record, the learned trial Court decreed the suit of the plaintiff with costs against defendant-respondent holding that no valid agreement came into existence between the parties and the defendant-respondent is liable to refund the amount of Rs. 5,000/-, the earnest money deposited by him with the defendant along with the tender form.

8. Aggrieved by the aforesaid judgment and decree of the trial Court, the defendant-respondent filed an appeal in the Court of the Additional District Judge, Chandigarh, who vide his order dated 23.1.1992 accepted the appeal of the defendant-respondent and dismissed the suit of the plaintiff.

9. I have heard the learned Counsel for the parties and carefully gone through the record of the case.

10. learned Counsel for the appellant refers to para No. 3 of the plaint wherein it was pleaded by the plaintiff that the tender was opened on the due date in the presence of the plaintiff and others and the plaintiff's tender being the sole tender, his tender was not accepted and the fresh tenders would be invited as a consequent of which he sent a letter dated 7.5.1979 under the postal cover to the Senior Regional Manager, Food Corporation of India, Chandigarh to refund the amount of Rs. 5,000/-. The period mentioned in the aforesaid tender was to expire on 29.5.1979 but to his utter surprise, the respondent-Food Corporation of India conveyed to the plaintiff the acceptance of the offer dated 12.6.1979 by Senior Regional Manager of Food Corporation of India through a telegram Ex.R-2.

11. The plea of the respondent was that the Senior Regional Manager of Food Corporation of India had the power to extend the date of the tender by a fortnight and such extension shall be binding on the tenderer. He referred to the tender form Ex.R1 where the date of opening of the tender has been recorded as 30.4.1979 at 3.00 p.m. and the tender was open for acceptance upto 29.5.1979.

12. According to the learned Counsel, the Senior Regional Manager could not extend the period by 15 days by a fortnight after the expiry of the period of limitation. Once the period of limitation comes to an end, the extension could be made before the expiry of the period prescribed, which is not the case of the respondent in the present case. Even the order passed by the Senior Regional Manager of Food Corporation of India has also not been produced by the respondent so as to show that the tender was accepted by him within the prescribed period. The telegram Ex.R is stated to have been dispatched on 14.6.1979. No postal receipts have been placed on record. Therefore, conveying the photocopy of the telegram Px.R2 which bears the endorsement that the same was sent to the plaintiff on 14.6.1979 after the expiry of the period of limitation alleged to have been exercised by the Senior Regional Manager is of no consequence.

13. learned Counsel was trying to convenience that in fact no agreement exists between the parties. Therefore, subsequent appointment of Arbitrator made by the respondent-defendant and any award passed by him, is not binding on the plaintiff.

14. On the other, it was argued that under Clause C, there is a Note-I wherein the power has been conferred upon the Senior Regional Manager of Food Corporation of India that he has the power to extend the period of acceptance of tender by fifteen days. The discretion to extend the date by a fortnight was binding on the tenderer. Therefore, all subsequent proceedings initiated by the Arbitrator are binding on the plaintiff.

15. After hearing the learned Counsel for the parties and going through the pleadings of the parties, the respondent-defendant has not denied the fact that the plaintiff was the only tenderer, who submitted the tender on 30.4.1979. It is admitted that the tender was opened on 30.4.1979 and that the plaintiff being the only tenderer, the same was not accepted by the defendant on its opening and nor he was informed about its acceptance. It was on account of this that the plaintiff applied for the referred of his earnest money of Rs. 5,000/- vide a letter Ex.P-1. He also placed on the record the Postal Certificate etc. so as to show that the same has been dispatched to the addressee.

16. The telegram Ex.R2 is dated 14.6.1979 through which the plaintiff was alleged to have been conveyed the acceptance of his tender on 12.6.1979 could not be termed that a valid agreement exists between the parties because the said telegram Ex.R2 bears some endorsement dated 14.6.1979. The said telegram was sent on 12.6.1979, 14.6.1979 or 27.6.1979. No postal receipt has been produced by the defendant. Even the address given in the tender Ex.R1 and the letter Ex.R2 are different and sent to different addressee. All the steps show that the defendant-respondent was trying to cover up its inefficiency by not accepting the tender in time.

17. In this view of the matter, it can be safely concluded that no valid agreement came into existence between the parties. The period mentioned in the tender had already expired before it could be accepted. Therefore, the learned trial Court has rightly concluded that there exists no valid agreement between the parties.

18. The observations made by the Appellate Court that the plaintiff was conveyed the acceptance of the tender through telegram Ex. R1 is sufficient to hold that there exists a valid agreement between the parties is not sustainable. Accordingly, the findings recorded by the learned Additional District Judge on issue No. 1 in favour of respondent are set aside and the findings recorded by the learned Subordinate Judge on issue No. 1 in favour of the plaintiff are affirmed. As a consequence, this Regular Second Appeal No. 594 of 1992 is accepted. The impugned order under appeal passed by the learned Additional Sessions Judge, Chandigarh is set aside and the decree passed by the learned Subordinate Judge in favour of the plaintiff is upheld with costs.