In view of judgment of this Court in Va Tech Escher Wyass
Flovel Ltd. v. MPSE Board & Another, (2011) 13 SCC 261 having been
overruled and as the High Court has relied on Judgment in C.R.
NO.353 of 2004, Mahesh Chandra Garg v. State of M.P. and Ors.
decided on 23.2.2010 which was based on Va Tech (supra), the
impugned order is set aside and the matter is remanded to the M.P.
Arbitration Tribunal so that the said Tribunal can deal with the
matter on merits in accordance with law.
The appellant may serve a copy of this order on the
respondents.
WITH
M/S. MAKHIJA CONSTRUCTION CO. Respondent(s)
AND
In view of judgment of this Court in Va Tech Escher Wyass
Flovel Ltd. v. MPSE Board & Another, (2011) 13 SCC 261 having been
overruled, the jurisdiction to deal with the dispute in question is
vested with the M.P. Arbitration Tribunal constituted under the
M.P. Madhyastham Adhikaran Adhiniyam, 1983. The direction in the
impugned order under Section 11 of the Arbitration and Conciliation
Act, 1996 is set aside.
The appeals are disposed of.
The respondent will be at liberty to take their remedy before
the statutory Tribunal in accordance with law.
The parties may appear before the M.P. Arbitration Tribunal
for further proceedings on 9th July, 2018.
The appellant may serve a copy of this order on the
respondents.
STATE OF MADHYA PRADESH AND ANR. Appellant(s)
M/S. KETI CONSTRUTION Respondent(s)
We have learned counsel for the parties and perused the
record.
It is not disputed by learned counsel for the parties that in
view of judgment of this Court in Madhya Pradesh Rural Road
Contractors, (2012) 3 SCC 495 which has overruled the judgment of
this Court in Va Tech Escher Wyass Flovel Ltd. v. MPSE Board &
Another, (2011) 13 SCC 261, the impugned order has to be set aside
and the matter remanded to the High Court which may decide the
dispute between the parties in the revision petition filed by the
respondent in accordance with law. Ordered accordingly. Civil
Revision NO.509 of 2005 is restored to its original number.
The appeal is disposed of.
The parties may appear before the High Court for further
AND
AND
We have heard learned counsel for the parties and perused the
record.
In view of judgment of this Court in Madhya Pradesh Rural Road
Contractors, (2012) 3 SCC 495 and the order passed by this Court on
8th March, 2018 in the same matter, the M.P. Arbitration Tribunal
constituted under the M.P. Madhyastham Adhikaran Adhiniyam, 1983,
(M.P. Act) has the exclusive jurisdiction to deal with the dispute
in question. Accordingly, the impugned direction under Section 11
of the Arbitration and Conciliation Act, 1996 cannot be sustained
and is set aside.
The parties are relegated to M.P. Arbitration Tribunal which
may decide the dispute as per provisions of M.P. Madhyastham
Adhikaran Adhiniyam, 1983 (M.P. Act).
The appeals are disposed of.
The parties may appear before the Tribunal for further
It will be open to the respondents to file the very same claim
which has already been filed before the Arbitrator.
@ Diary No.10625 of 2018)
PURI CONSTRUCTIONS PVT. LTD. Appellant(s)
STATE OF MADHYA PRADESH & ORS. Respondent(s)
We have heard learned counsel for the parties and perused the
record.
An agreement was executed between the parties on 11th May, 1984
for construction of Assembly building in the State of Madhya
Pradesh. Dispute arose from the agreement. The High Court of
Delhi appointed an arbitrator vide order dated 13th December, 1988.
The Arbitrator gave the award on 21st June, 1989 which was made Rule
of the Court by Delhi High Court on 28th September, 1989. Execution
proceedings were taken by the appellant. Learned Single Judge
allowed the execution vide Order dated 6th September, 1991 against
which an appeal was filed before the Division Bench of the High
Court.
The Division Bench vide order dated 5th July, 2012 directed
that the enforceability of the decree will depend upon the fate of
another appeal which was pending between the parties. The said
appeal, FAO (OS)No.23/1998, is still pending but the High Court has
deferred the same pending decision of larger Bench of this Court in
pursuance of judgment of this Court in Madhya Pradesh Rural Road
Contractors, (2012) 3 SCC 495. It may be noted that the larger
Bench has decided the matter on 8th March, 2018. In terms of the
said decision the dispute between the parties has to be settled in
accordance with the provisions of the M.P. Madhyastham Adhikaran
Adhiniyam, 1983 (M.P. Act).
However, since in the present case the award has been rendered
long back which was not challenged by the respondents and the
matter is pending at the stage of execution, we direct that the
award be treated to have been rendered under the M.P. Act.
In view of above, we transfer pending proceedings before Delhi
High Court being FAO (OS)NO.23/1998 and connected matters to High
Court of Madhya Pradesh at Jabalpur to be treated as revision
petition under the M.P. Act.
Another dispute between the parties was referred to
arbitration vide order dated 19th May, 1993. However, before the
arbitration proceedings could be decided the arbitrators are said
to have expired.
In the circumstances pending Arbitration proceedings shall
stand transferred to the M.P. Arbitration Tribunal under the M.P.
Act, to be dealt with as per provisions of the M.P. Act in
accordance with law. The proceedings may be carried out in
continuation of earlier proceedings.
The parties may take steps by moving the High Court or any
other forum for transfer of records to the transferee courts in the
light of this Order.
The appeal is accordingly disposed of.
The parties may appear before the High Court/Tribunal for
further proceedings on 9th July, 2018.
CIVIL APPEAL NO. 4017 OF 2018
(Arising out of S.L.P. (C) NO. 6513 OF 2018)
1.Leave granted. Heard learned counsel for the parties.
2.Our attention has been drawn to the definition of "dispute" under Section 2(d) of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 ("1983 Act") which is as follows: "'dispute' means claim of ascertained money valued at Rupees 50,000 or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof."
3.We consider it appropriate to clarify that the expression "ascertained money" as used in Section 2(d) of the 1983 Act will include not only the amount already ascertained but the amount which may be ascertained during the proceedings on the basis of claims/ counter claims of the parties. {
4.Our attention has also been drawn to Section 4(3)(iii) of the 1983 Act to submit that consistent with the policy of law and the judgment of this Court in Indian Oil Corporation Ltd. and Ors. vs. Raja Transport Private Ltd., (2009) 8 SCC 520, an employee of a party to the dispute cannot be an arbitrator. Section 4(3)(iii) of the 1983 Act is in the following terms: "4. Chairman and members of Tribunal and their qualifications.-(3) No person shall be qualified for appointment as a member of the Tribunal, unless(iii) he is or has been :-(a) Chief Engineer in the service of the State Government in Public Works, Irrigation or Public Health Engineering Department; or (b) a Chief Engineer in the service of the Madhya Pradesh Electricity Board; or (c) a Senior Deputy Accountant General of the Office of the Accountant General, Madhya Pradesh, for a period of not less than five years: Provided that in the case of clause (iii), in exceptional circumstances, the State Government may relax the prescribed minimum period of five years to three years."
5.We clarify that the State of Madhya Pradesh will not appoint as member of the Tribunal, its employee of the concerned department to which the dispute relates.
6.The appeal stands disposed of as above. S.L.P.(C)….D. No. 10817/2018 and S.L.P.(C)…..D. No. 12928/2018: Delay condoned. The special leave petitions shall also stand disposed of in terms of the order passed today in S.L.P. (C) No. 6513 of 2018. Pending applications, if any, also stand disposed of. NEW DELHI, APRIL 18, 2018 CIVIL APPEAL NO. 4018 OF 2018 (Arising out of S.L.P. (C) NO. 12478 OF 2016) STATE OF MADHYA PRADESH & ANR. APPELLANT(S) ASHOKA INFRAWAYS LTD. & ANR. RESPONDENT(S) Leave granted. Heard learned counsel for the parties. It is not disputed that the judgment relied upon in the impugned order has since been overruled by a larger bench of the High Court in Viva Highways Ltd. vs. Madhya Pradesh Road Development Corporation reported in 2017 (2) MPLJ 681. Accordingly, the impugned order is set aside and the appeal is allowed. It is made clear that if any arbitration proceedings are pending, the same will now be governed by the above judgment of the High Court. The appeal is disposed of. NEW DELHI, APRIL 18, 2018