1 CRA No.396/11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.396 of 2011
M/s.Sira Constructions ... Petitioner
versus
Sudhir Vishnu Aanjarlekar ... Respondent
...
Mr.A.Y.Sakhare, Sr. Counsel i/b Vikram R. Chavan for the petitioner.
Mr.P.S.Dani with Mr.Madhu Hiraskar i/b Chitnis Vaithy & Co. for the
respondents.
CORAM : D.G. KARNIK, J
DATED : 8th June 2011
P.C.
1. Rule returnable forthwith, Mr.Dani i/b waives service for the
respondent. By consent heard forthwith.
2. By this petition, petitioner challenges the order dated 6
December passed by the District Judge-1, Khed, District Pune
rejecting his application under section 47 of the Code of Civil
Procedure.
3. Petitioner is the judgment debtor. An award was passed
against the petitioner in an arbitration proceedings under the
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Arbitration and Conciliation Act 1996 (for short “the Arbitration
Act“). As the award was not satisfied, respondent put the award in
execution. At the first instance, the petitioner made an application
at Exhibit 12 before the executing court contending that award was
not executable on seven grounds viz:
1. There was no subsisting contractual agreement
between the parties.
2. The arbitration agreement was not at all in
existence between the parties.
3. Mr.Aagharkar was never appointed as an
arbitrator.
4. The alleged dispute was never referred to
Mr.Vilas Aagharkar.
5. The arbitrator is self appointed arbitrator,
hence he was prohibited by law to proceed with thearbitration proceedings.
6. The proceeding and award made by the
alleged arbitrator is illegal and void.
7. The decree passed by arbitrator without
jurisdiction was nullity and void.
By its order dated 7 August 2009, the executing court rejected
the application.
4. Petitioner filed writ petition no.2600 of 2011 against the
order of the executing court dated 7 August 2009. The writ petition
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came up for hearing before this court on 7 July 2010. At that time,
counsel for the petitioner made a statement that petitioner had filed
a substantive suit raising the issues which were the very issues
raised in the writ petition and therefore, the petitioner may be
allowed to withdraw the writ petition with liberty to pursue the
alternative remedy. By an order dated 7 July 2010, this court
permitted the petitioner to withdraw the writ petition with liberty to
pursue alternative remedy without expressing any opinion as to the
maintainability of the alternative remedy. It appears that the
alternative remedy was not pursued by the petitioner and the suit
filed by it is still pending in the trial court. In the mean while, the
petitioner made a fresh application before the executing court at
Exhibit 25 on 8 January 2010 again contending that the decree was
not executable. The ground raised in Exhibit-25 were similar to the
grounds raised earlier with one additional ground that the award
was obtained by fraud and therefore was void and not executable.
By an order dated 6 April 2011 (wrongly typed as “6 December
2011”), the application was rejected. That order is impugned in the
present petition.
5. In my view, the application (exhibit-25) is totally
misconceived. The petitioner cannot be allowed to raise the very
same contentions over and over again merely by adding one more
ground of fraud. He cannot object to the execution of the very
award on the ground that it is under principles of res judicata as
well as constructive res judicata applies to the different stages of the
same proceedings. A ground of challenge which could have been
raised at the first instance at an interim stage of the suit and has not
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been raised, cannot be allowed to be raised at any subsequent
interim stage in the very proceedings. The ground that the award is
a nullity as it was obtained by fraud could have been raised by the
petitioner when he made an application at Exhibit-12. He did not
raise it. Even in the writ petition filed against the order of the
executing court rejecting Exhibit 12, he did not raise the said
ground but withdrew the writ petition. He cannot file another
application again contending that the award is void as it is obtained
by fraud. In my view, the second application was an abuse of the
process of the court. Learned District Judge has therefore rightly
rejected it. Writ Petition is accordingly dismissed and rule is
discharged with costs which are quantified at Rs.5,000/-.
(D.G.KARNIK, J)
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