TMI Blog1999 (4) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... no authority to do. An agreement was entered into between the appellant and the respondent For execution of the work called providing lining to bet and side slopes of Pamidipadu Branch Canal of N.S. Canals from K.M. 0-0-008 to 1-00-004 KM , four separate agreements were entered into. As is usual in such contracts, disputes arose arid these were referred to sole arbitrator who gave separate awards dated April 18, 1986 in respect of each of the agreements as under:- SI. No No. of agreement Amount awarded 1. A.S.. No. 8/SE, dated 20-5-82 ₹ 3,73,486 + final Bill, withheld amounts and damages. 2. A.S. N0.9/SE, dated 20,5.82 Rs, 4,08,377 + final Bill, withheld amounts and damages. 3. A.S. No. 10/SE dated 20.5. 82 work not executed) ₹ 1,23,250 + E.M.D., Bank Guarantee and damages. 4. A.S. No. 1 1/SE, dated 20,5.82 ` (work not executed) ₹ 1,23,250 + E.M;D., Bank Guarantee and damages. At the same time, the award also directed payment of interest at the rate of 18% per annum on the amounts so awarded. To understand the rival contentions; we may refer to one of the awards in agreement No, 11/SE (serial No. 4 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 992) SC 2192, and the latest being State of Orissa v. B.N. Agarwalla , [1997] 2 SCC 469, the arbitrator could award interest both pendante lite and future which he gave at the rate of 18% per annum. When the matter was pending before the Principal Subordinate Judge, he reduced the award of interest from 18% per annum to 12% per annum. Otherwise he made all the four awards rule of the court and passed decrees in terms thereof. The respondent did not challenge the grant of interest at the lower rate of 12% per annum by the Principal Subordinate Judge by Filing any appeal against his judgment making the awards rule of law. It was the appellant who appealed to the High Court against the judgment of the Principal Subordinate Judge. When notice of appeal was served on the respondent, he filed cross-objections under Order 41 Rule22 of the Code of Civil Procedure (for short, the `Code') challenging the judgment of the Principal Subordinate Judge whereby the award of interest was interfered with. The High Court while dismissing the appeals allowed the cross- objections and restored the award of interest at the rate of 18% per annum as given by the arbitrator. This, now the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Explanation.-A respondent aggrieved by a finding of the Court in the judgment On which the decree appealed against is based may under this rule, file cross-objection in respect of the decree in so far as it is based on that finding notwithstanding that by reason of the decision of the Court on any other finding Which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. (2) Form of objection and provisions applicable thereto.-Such cross- objection shall be in the form of a memorandum, and the provisions of Rule I, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Unless the respondent files with the objection a written acknowledgment from the party who may be af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 940 and through his cross-objection the appellant seeks to get the award modified. The only point in controversy is whether the cross- objection filed by the appellant can be considered as application or petition within the meaning of Article 3 of Schedule 1. The words in the bracket including memorandum of appeal in our opinion refer to the word `petition' immediately preceding those words. In other words the word `petition' includes the memorandum of appeal as well. The question is whether a cross-objection filed by a respondent in an appeal can be considered as a memorandum of appeal. We have no doubt that it is a memorandum of appeal in substance though not in form. It is a right given to a respondent in an appeal to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It takes the place of a cross-appeal. It is true that while Article 1 of Schedule 1 refers to `cross-objection', Article 3 of that Schedule does not refer to cross-objection as such but that in our opinion make no difference. It is only an inartistic drafting. In Hakam Singh v. M/s. Gammon (India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ansari Co. v. Union of India Ors ., [1983] 4 SCC 417, this Court was again considering the ambit and scope of Section 41 of the Arbitration Act. It said: The appellant in the instant case took the stand that there was no concluded contract between the parties including arbitration. Therefore, the order of injunction passed in the instant case could not be for the purpose of and in relation to arbitration proceedings. Faced with this difficulty Shri S ,N. Kaicker, learned counsel for the appellant, fell back upon clause (a) of Section 41 to content that clause (a) makes the Code of Civil Procedure applicable to all proceedings before the court and to all appeals under the Act and, therefore, the appellant was entitled to invoke Order 39 of the Code to get an injunction order even if the conditions of clause (b) of Section 41 were not satisfied. We are afraid this contention cannot be accepted. Clause (a) of Section 41 makes only the procedural rules of the Code of Civil Procedure applicable to the proceedings in court under the Arbitration Act . This clause does not authorise the court to pass an order of injunction. The power is conferred by claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the: Act. In Ramanbhai Ashabhai Patel v.. Debhi Ajitkunmar Fulsinji Ors., [1965] 1 SCR 712, the main question for consideration before this Court was whether the appellant could be said to be guilty of a corrupt practice as contemplated by Section 123(3) of the Representation of People Act, 1951, when counsel for the respondent referred to the finding of the High Court regarding the validity of the second respondent's nomination paper, counsel for the appellant raised a preliminary objection to the effect that the first respondent was not competent to challenge the correctness of the finding as he had not preferred an appeal therefrom. In the course of discussion in the judgment, this Court observed: Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points Arising from the judgment appealed against and even in the absence of an express provision like O'.XLI, 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent has the right to file a Cross-objection. In Bihar State Electricity Board v. Khalsa Bros ., AIR (1988) Patna 304, a Division Bench of the Patna High Court speaking through L.M. Sharma, J. (as His Lordship then was) said: The Supreme Court cases arose under the Representation of the People Act , 1951 and the Calcutta case under the Bengal Money Lenders Act. The observations made in these cases support the principle which Mr. Chatterjee is relying. So far the arbitration Act is concerned, the view in favour of the maintainability of a cross-objection appears to be stronger inasmuch as S. 41 of the Act says that subject to the provisions of, and the rules made under the Act, the Civil Procedure Code shall apply to all proceedings before the court and to all appeals under the Act. There does not appear to be any provision inconsistent with the application of the Civil Procedure Code. The decision of the Court so far it has gone against the plaintiff- respondent is clearly appealable under S, 39 and I therefore, hold that the cross-objection is maintainable. While there was no provision like Section 41 of the Arbitration Act in the Bengal Money Lende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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