JUDGMENT
S.N. Hussian, J.
1. Heard learned counsel for the parties.
2. The petitioners are defendants in Title Suit No. 23 of 1985 which was filed by the sole opposite party under Section 20 of the Arbitration Act, 1940 (hereinafter referred to as ‘the Act’ for the sake of brevity) for the appointment of an Arbitrator for looking into the dispute between the parties under the terms of agreement as provided in the Arbitration Clause-XIX.
3. The short fact of the case is that petitioners and the opposite party entered into a contract on 4.7.1977 by which the opposite party was appointed as Handling and Transport Contractor in some of the depots of the Food Corporation of India (hereinafter referred to as ‘the Corporation’ for the sake of brevity) at 249% above the Schedule of Rates (SCR) of the Corporation for the Period 4.7.1977 to 3.7.1980 for the storage and distribution of food grains. After the contract was over there was a dispute regarding difference of cost incurred on account of enhanced payment to the employees in compliance of the amended provisions of Minimum Wages Act. The matter was referred to the Arbitrator who submitted his Award on 19.2.1990 holding that the opposite party was entitled to the difference of the said cost. Subsequently, the opposite party filed Misc. Case No. 2 of 1990 under Section 17 of the Act for making the Award ‘Rule of the Court’ and after hearing the parties and after perusing the materials produced by them the learned Court below passed its Judgment on 11.8.1998 allowing the Misc. Case, decreeing the suit and making the aforesaid Award ‘Rule of the Court’.
4. Against the said Judgment the defendants filed Misc. Appeal No. 498 of 1998 which was dismissed by this Court vide order dated 29.11.1999, which was challenged by the defendants in the Hon’ble Supreme Court vide S.LP. (Civil) No. 4984 of 2000, which was dismissed as withdrawn on 11.9.2000 by the Hon’ble Supreme Court to enable the petitioners to move the High Court for review. After the said order the defendants-petitioners filed Civil Review No. 300 of 2000, which was dismissed by this Court on 30.7.2001 by a well considered order holding that the calculations given by the contractor was not objected to by the petitioners in their petition under Section 30 of the Act. It was also held that factual error is not open to correction or interference by this Court as has been held in the case of A. Rangaswamy v. Balasubramania Foundry and Ors., reported in 1987 (3) SCC 724. However, it was observed that the parties may sit together and find out whether really any arithmetical error had occurred in the bills and if found, the same may be corrected by them mutually. Moreover, it was reiterated that there was no scope for this Court to interfere in the matter and accordingly rejected the review petition. This order passed in the review case was not challenged by the defendants-petitioners.
5. In the meantime, Execution Case No. 10 of 1998 was initiated before the Executing Court for execution of the decree dated 11.8.1998 passed in Title Suit No. 23 of 1985, but immediately after the above mentioned order of this Court, the defendants- petitioners filed Misc. Case No. 8/2001 under Sections 47, 152 and 153. CPC in the said Execution case for correction and rectification of the aforesaid Judgment and decree of the Title Suit and to stay further proceeding of the Execution case. This petition bearing Misc. Case No. 8 of 2001 has been dismissed by the learned 4th Sub-Judge, Patna, by the impugned order dated 29.11.2002.
6. The learned counsel for the petitioners submitted that contract was awarded at 249% above the Schedule Rate of Corporation for three years incorporated in the agreement dated 4.7.1977, but in the midst of the contract, rate of minimum wages was enhanced by Govt. Notification dated 25.11.1978, hence the contractor (opposite party) applied for enhancement which was refused, regarding which the dispute was raised by him vide Title Suit No. 23 of 1985 whereafter the matter was referred to arbitrator who prepared his Award dated 19.12.1990 regarding which the petitioners had no objection. The learned counsel for the petitioners further contended that due to collusion between the contractor and some authorities of the Corporation, no bill was submitted within 15 days as ordered nor any objection was filed on behalf of the petitioners after the Award. The learned counsel for the petitioners further contented that there was a difference of calculation in the Award and the decree/Judgment and hence the claimant was entitled to difference of rates in 1973 and 1978, but in the bill of statement of accounts sent by the opposite party by registered post on 3.3.1990 to the petitioners there were wrong calculations in the end as Ext. 12 clearly shows that the opposite party was entitled to 711.11% minus 327% which is equal to 384.11% above the Schedule Rate as per the Award and Judgment, but instead of subtracting 327% the opposite party added 249% for which there was no occasion as by that method the Rate had shot up to 3000% above the Corporation Rate. Hence, according to the petitioners, this was a clear case of fraud and misrepresentation by which a wrong decree has been obtained which can be corrected at any stage. In support of this contention, the learned counsel for the petitioners had relied upon a case reported in AIR 1994 SC 853 S.P. Chenglvaraya Naidu (dead) by LRs. v. Jagannath (dead) by L. Rs. and Ors. as well as a case reported in (2003) 8 SCC 319 Ramchandra Singh v. Savitri Devi and Ors.
7. The learned counsel for the petitioners also averred that the points involved in this civil revision were included in petitioners additional ground dated 15.11.1999 and their supplementary affidavit dated 28.9.1999 filed in Misc. Appeal No. 498 of 1998, whereas the reply of the opposite party dated 30.9.1999 was not pressed at the time of final hearing of the Appeal on 29.11.1999, hence he contended that due to this non-consideration, the Hon’ble Supreme Court had directed the petitioners to file a review case and it was due to this reason that this court in its order dated 30.7.2001 passed in Civil Review No. 300 of 2000 observed that there should be an amicable settlement after correction of the errors of calculation, but when the said amicable settlement failed the petitioners had no option but to move the Executing Court. In this regard the learned counsel for the petitioners relied upon a decision in the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd., reported in (1996) 5 SCC 550 in which it was held that the question of fraud can be decided even in colateral proceedings. Hence, he submitted that the impugned order is illegal, arbitrary and perverse.
8. On the other hand, the learned counsel for the opposite party submitted that once parties have adduced evidence, oral and documentary, then the question of fraud or mis-representation does not arise. In this case Arbitrator was appointed by the petitioners themselves and according to the Award, accounting was to be done between the parties and hence it was really a conditional Award as per Section 13 of the Act, thus the opposite party submitted his bills within the time prescribed by the Arbitrator, but the petitioners never objected to it, although, the decree in the suit was passed about eight and half years after the submission of the Award, Hence, all the opportunities were available to the petitioners but they themselves did not avail those opportunities and thus there is no question of any fraud or mis-representation, The learned counsel for the opposite party further contended that before passing the Judgment and decree, the learned trial Court heard the matter in detail and considered the depositions of the authorities of the petitioner-Corporation and after considering the entire material decreed the suit and made the Award ‘Rule of the Court’ determining the amount also as no objection was ever raised at any stage to the accounts.
9. The learned counsel for the opposite party also averred that in Misc. Appeal No. 498 of 1998 also no objection to the accounts was raised until the Appeal was heard on 22.9.1999 when the hearing was concluded and order was reserved, which was finally dismissed on 29.11.1999 by this Court. The learned counsel for the opposite party in this regard also says that the petitioners had filed additional ground in the said Misc. Appeal on 15.11.1999 in the office of the High Court without seeking any permission for doing so, although, order was reserved much earlier on 22.9.1999 and hence the same was not even on the record of the Appeal and thus no error was committed by this Court in ignoring the said additional ground as has been held in the case of Indian Petro Chemicals Corporation Ltd v. Shramik Sena and Ors., reported in (1999) 3 SCC 643. The learned counsel for the opposite party also submitted that the order of this Court passed in the said Misc. Appeal was not interfered with by Hon’ble Supreme Court and in fact the special leave petition was dismissed withdrawn and hence no benefit from it could be derived by the petitioners. The learned counsel for the opposite party also contends that this Court dismissed the Review case filed by the petitioners by a detailed order on merits which was never challenged by them before any Court and hence this Court cannot interfere and take a different view in the teeth of the aforesaid order.
10. So far the observations in the aforesaid order passed in the Review case with respect to mutual consideration or arithmetical error is concerned, no legal action can be taken on its basis as in the same continuation this Court had held that there was no scope for this Court to interfere into this matter and hence the matter was concluded once for all. The learned counsel for the opposite party further contended that in the aforesaid circumstances, the learned Court below rightly rejected the petition (Misc. Case No. 10/98) filed by the petitioners by the impugned order specially when the aforesaid order of this Court was there and it is a well settled law that even Sections 151 and 152, CPC do not contemplate of passing any judicial order after the Judgment and decree, as has been held in the case of Dwarka Das v. State of M.P. and Anr. reported in AIR 1999 SC 1031. The learned counsel for the opposite party also contended that the Review Court did not take any wrong decision nor the same was challenged and hence there was a clear bar of resjudicata for this Court to interfere into the matter again in view of the decision of the Hon’ble Supreme Court in the case of Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr., reported in AIR 1978 SC 1283, specially when all the matters raised by the petitioners were decided by the Review Court. Hence, according to him, this civil revision is fit to be dismissed.
11. After considering the arguments of the learned counsel for the parties to this case as well as the materials on record and also the propositions of law, it is quite apparent that the petitioners want this Court to traverse on the same course and path upon which this Court has traversed in the review case and had decided the same. In the said review case the petitioners had raised the only plea that there was error in calculation as per the Award itself which requires interference as this Court, while hearing the Misc. Appeal, had committed error by ignoring the additional ground raised by them.
12. This Court while dismissing the Review case specifically held that the said additional ground was not available to the petitioners as admittedly the bills prepared by the contractor had been placed as per the direction of the Arbitrator, but the petitioners never objected to the bill or the amounts and calculation mentioned therein and even in Misc. Appeal no such objection was raised and only when hearing was concluded and order was reserved, the petitioners filed an additional ground and that too without any permission of the Court. It was also held in the said order of this Court in Review case that when no objection had been raised under Sections 30/33 of the Act, there was no scope to raise such objection before the appellate Court or at any subsequent stage, because there remains no scope to entertain any point which has not been raised in the objection under Sections 30/33 of the Act and no body can be allowed to raise any objection at their whims and sweet will at any point of time. It was also held by the said order in Review case that factual error is not open to correction or interference by this Court where only errors of law can be raised but no such error has been pointed out by the petitioners. These views of this Court held in the Review case find support from the decisions of the Hon’ble Supreme Court as in cases of A. Rangaswamy supra and Indian Petrochemicals Coprn. Ltd., supra.
13. The petitioners have raised exactly the same points again in the Court below in Misc. Case No. 8 of 2001 as well as in this revision, but the same can not be legally allowed firstly, because the issue has already been decided by this Court and also because the entire claim of the petitioners is bad, frivolous and misconceived and they can not be allowed to continue with the litigation and to go on raising objections till eternity, hence the learned Court below was quite justified in dismissing the said Misc. case by the impugned order.
14. So far the observation at the end of the order of this Court in Review case regarding mutual correction of the arithmetical calculation is concerned, the learned counsel for the opposite party submits that he approached the petitioners, but no step was taken by the latter clearly because there was no error in the arithmetical calculation of the bills. Moreover, the petitioners can not take any advantage from the said observation which had no effect on the concluding order of the Court by which the Review case was dismissed on merits.
15. In the aforesaid facts and circumstances, I do not find any merit in this
civil revision which is accordingly dismissed.