GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (7) TMI 51 - SUPREME COURT

2016 (7) TMI 51 - SUPREME COURT - TMI - Arbitration proceedings - whether the disputed claim is live claim or not - Hon’ble Chief Justice giving the reasons rejected the application in Arbitration Case No. 89 of 2006 holding that the claim made by the appellant is not a live claim. - Held that:- In sub-Clause (g) the period of two years under which the Government is entitled to make recovery is “from the date of payment of the undisputed portion of the final bill”. The examination of the additio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

puted part. - The disputed claims having never been adjudicated, we are of the view that there was a dispute which needed an adjudication after looking into all relevant documents, bills and certificates which could have been appropriately examined by Arbitral Tribunal and the observation of the Chief Justice “As the appellant has failed to prima facie show this court that there was a live claim of the appellant” does not commend us. - The claim raised by petitioner in the facts of the c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dentical questions of law have been heard together and are being decided by this common judgment. For deciding both the appeals, it shall be sufficient to refer to facts and pleadings in Civil Appeal No. 7184 of 2008. Appeal No. 7184 of 2008 has been filed against judgment of Chief Justice of Punjab & Haryana High Court in Arbitration Case No. 184 of 2006 by which judgment learned Chief Justice has dismissed the application, filed by appellant for referring the dispute to an arbitrator in ex .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for providing additional security fencing at Mullanpur. The work was completed on 10.7.2000. Work completion certificate was issued. Final bill was prepared on 20.2.2001 and the payment of final bill was made to the petitioner on 10.04.2001. Payment of the undisputed part of the final bill was made by cheque dated 10.04.2001. 4. Although Clause 67 of general conditions of contract contemplated for recovery from contractor in several contingencies one of which as referred in sub-Clause (f) was t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

emand for any recovery was issued by the Government. Contractor by letter dated 23.02.2005 served a notice stating that final bill amount as paid during April, 2001 did not include the payments due to contractor against several items which were claimed as per appendix A annexed to the notice. 6. It was further stated that the decision be communicated within thirty days failing which it shall be assumed that the claim is disputed and contractor shall be left with no remedy except to seek adjudica .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rayer that arbitrator under condition 70 of the Contract may kindly be appointed to adjudicate the dispute. The appellant thereafter filed an application under Section 11 of the Arbitration Act before District Judge, Ropar. The application was ultimately taken by Chief Justice of the High Court and by an order dated 12.03.2007, the application was rejected taking the view that appellant s claim is not a live claim. Aggrieved against the above judgment dated 12.03.2007 in Arbitration Case No. 184 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ejected the application in Arbitration Case No. 89 of 2006 holding that the claim made by the appellant is not a live claim. Hon ble Chief Justice by order dated 12.03.2007 took the view that final bill has been paid on 10.04.2001, the notice having been given only on 23.02.2005 the period of limitation was over. With regard to the Clause 67 of the contract, it was observed by the Chief Justice that Embargo of two years as per sub-Clause (f) and (g) is with regard to the right of the Government .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

xercise of his power under Section 11 of the Act. It is contended that the issues as to whether the claim is barred by time are the issues which ought to have been left for decision of arbitrator. It is contended that payment in respect to the final bill made on 10.04.2001, was payment with regard to undisputed amount. Apart from undisputed amount there were other claims of the contractor and the No Liability certificate given by the appellant was only with regard to undisputed claim. Payment ma .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

se the claim for disputed amount after expiry of the aforesaid period of two years. 14. The respondents never adjudicated the disputed part of the final bill and after serving notice the appellant had rightly sought for adjudication by an arbitrator which application has been rejected by Hon ble Chief Justice not on valid considerations. 15. Learned counsel appearing for the respondents supported the judgment of the Chief Justice and contends that for filing any application limitation is three y .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ature of jurisdiction of the Chief Justice while deciding an application under Section 11 of the Act has elaborately been considered by Seven Judge Bench of this court in SBP & CO. versus Patel Engineering Ltd and another (2005) 8 SCC 618. In para 47 of the judgment, conclusions were recorded by the larger Bench. Conclusion IV is relevant for the present case which is quoted as below: 47. We, therefore, sum up our conclusions as follows: (iv) The Chief Justice or the designated Judge will ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the designated Judge. 17. The Chief Justice exercises the judicial power while passing an order under Section 11 of the Act thus can examine the question as to whether the claim which has been raised before him survives and needs to be adjudicated. It goes without saying that if Chief Justice finds that claim is a dead claim, he can exer .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

it is difficult to assume that the power is conferred on the Chief Justice as persona designata. Under Section 11(6), the Chief Justice is given a power to designate another to perform the functions under that provision. That power has generally been designated to a Judge of the High Court or of the Supreme Court respectively. Persona designata, according to Black s Law Dictionary, means a person considered as an individual rather than as a member of a class . When the power is conferred on the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

class, or as filling a particular character . (See Osborne s Concise Law Dictionary, 4th Edn., p. 253.) In the words of Schwabe, C.J., in Kokku Parthasaradhi Naidu Garu v. Chintlachervu Koteswara Rao Garu4, personae designatae are, persons selected to act in their private capacity and not in their capacity as Judges . The same consideration applies also to a well-known officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can als .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

istrict Judges who constituted a class and, therefore, the Appellate Authority could not be considered to be persona designata. What can be gathered from P. Ramanatha Aiyar s Advanced Law Lexicon, 3rd Edn., 2005, is that persona designata is a person selected to act in his private capacity and not in his capacity as a judge. He is a person pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filling a particular character. It is also seen that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Act is expected to contain pleading about the existence of a dispute and the applicant is not expected to justify the claim or plead extensively in regard to limitation or production of document to demonstrate that claim is within time in proceeding under Section 11 and that issue should normally be left to the Arbitral Tribunal. Following was observed in para 15: 15. Normally a persona designata cannot delegate his power to another. Here, the Chief Justice of the High Court or the Chief Ju .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and the Supreme Court and the exercise of the power so conferred, is exercise of judicial power/authority as Presiding Judges of the respective courts. Replacing of the word court in the Model Law with the expression Chief Justice in the Act, appears to be more for excluding the exercise of power by the District Court and by the court as an entity leading to obvious consequences in the matter of the procedure to be followed and the rights of appeal governing the matter. The departure from Artic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

becomes relevant for the facts of the present case. In the present case also, the appellant has raised the claim beyond the three years of completing of the work but within five years of completion of the work. 21. In the present case, the appellant has also contended that there is a defect liability period of two years during which any recovery can be made from the contractor. Further the categorical case of the appellant was that final payment made at 10.04.2001 was the final payment of the un .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the contractor on 20.02.2001 that is when the final bill was prepared, has been brought on record. The payment was made by cheque dated 10.04.2001 and para 3/4 of the certificate filed at the 2nd page of the annexure 16 states as follows: 3. Printed Certificate signed by the petitioner at the time of receiving payment of the undisputed part of the Final Bill. Received ₹ 57532/-. This payment is in full and final settlement of all money due under C WE/AF CHD / CHD-5/98-99 and I have no fur .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

final bill and above certificate also clearly indicates that payment on 10.04.2001 was made of the undisputed part of the final bill which presupposes that there are certain other claims which are disputed. Clause 67 of the contract entered between the parties also uses expressions undisputed portion of the Final Bill 24. Appellant had relied on Clause 67 which contains a heading Recovery From Contractor under sub-Clause (f) and (g) which is to the following effect: (f) If, as a result of such .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ore. If as a result of such audit and technical examination any under payment is discovered, the amount of under payment shall be duly paid to the Contractor by Government. (g) Provided, that, nothing hereinbefore contained shall entitled the Government to recover any over-payment in respect of any price agreed between the C.W.E or the G.E. and the Contractor under the circumstances specifically prescribed for such method of assessment and that the said right of the Government to adjust over-pay .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f payment of the undisputed portion of the final bill . The examination of the additional materials brought on this appeal, does indicate that the case required consideration of relevant bills and certificates and determination on the question as to whether the claim laid by appellant was a dead claim and was not a live claim depended upon scrutiny of relevant documents. The pleadings in the proceeding under Section 11 by the appellant were clearly to the effect that on 10.04.2001, he was paid o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version