{"id":145327,"date":"2009-06-12T00:00:00","date_gmt":"2009-06-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-padmashree-enterprises-vs-the-state-of-maharashtra-on-12-june-2009"},"modified":"2016-07-28T15:05:57","modified_gmt":"2016-07-28T09:35:57","slug":"ms-padmashree-enterprises-vs-the-state-of-maharashtra-on-12-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-padmashree-enterprises-vs-the-state-of-maharashtra-on-12-june-2009","title":{"rendered":"M\/S.Padmashree Enterprises vs The State Of Maharashtra on 12 June, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
M\/S.Padmashree Enterprises vs The State Of Maharashtra on 12 June, 2009<\/div>\n
Bench: R.Y. Ganoo<\/div>\n
                              1\n\npps\n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                 \n                    CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                         \n                     FIRST APPEAL NO.644 OF 1991\n\n\n\n\n                                        \n      M\/s.Padmashree Enterprises,\n      851\/2, VRINDAVAN\n      Bhandarkar Institute Road,\n      Erandwane,\n\n\n\n\n                                 \n      Pune 411 004,\n      by its Sole Proprietor\n      Shri S.S.Banhattiig                 ..Appellant\n                                      (Claimant in Suit\n                                       Respondent in Misc.\n                                       Application)\n                     \n      versus\n        \n\n\n        1. The State of Maharashtra,\n     \n\n\n\n           through Government Pleader,\n           High Court, Bombay.\n\n\n\n\n\n        2. The Executive Engineer,\n           Kanher Canal Division,\n           Satara                         ..Respondents\n                                      (Respondent in Suit.\n                                       Applicant in Misc.\n                                       Application)\n\n\n\n\n\n      Mr.Atul Rajadhyaksha, Senior Counsel with Mr.Kedar\n      Wagle, Pankaj Vernekar i\/b. V.D.Surve for the\n      appellants.\n\n      Mrs.Gita Mulekar AGP for the respondent No.1.\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 14:38:44 :::\n                                   2\n\n\n    Mr. Vijay Patil for Respondent No.2.\n\n\n\n\n                                                                          \n                                         CORAM : R.Y.GANOO, J.\n<\/pre>\n
                                         DATE : 12th JUNE, 2009.\n<\/p>\n
    ORAL JUDGMENT:\n<\/p>\n
    1.     Appellants herein were awarded contract to carry<\/p>\n
         out certain Civil Construction Work in regard to<\/p>\n
         Krishna     Project.\n<\/p>\n
                           ig     The    appellants         and      respondents<\/p>\n
         have for the purpose of complying with the terms and<\/p>\n
         conditions of the said agreement entered into what<\/p>\n
         may be referred to as Tender Contract and in the<\/p>\n
         tender      contract   there    were   clauses         No.54        and       55<\/p>\n
         concerning reference           of dispute to arbitration in<\/p>\n
         case     dispute   arises      between     the      appellants              and<\/p>\n
         respondents.       As to which points could be referred<\/p>\n
         to the Arbitrator is well discussed in clauses 54<\/p>\n
         and    55   of   the   tender   contract        and      there        is      no<\/p>\n
         dispute about it.         The record also indicates that<\/p>\n
         between the appellants and the respondents certain<\/p>\n
         dispute arose in regard to the performance of the<\/p>\n
         contract and the related aspects and as a result of<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                  3<\/span><\/p>\n
     that the appellants called upon the respondents to<\/p>\n
     proceed    to   take     steps         to    refer        the      dispute           to<\/p>\n
     arbitration and this was done in terms of letter<\/p>\n
     dated    13.6.1985.         The        record      also      shows        that       in<\/p>\n
     terms    of   clause     55       of    the     Tender          Contract           the<\/p>\n
     respondents were required to                          inform            names of<\/p>\n
     three persons out of whom one could be accepted by<\/p>\n
     the appellants as Arbitrator.                   The record shows that<\/p>\n
     the     Respondents
\n                      ig         did        not      communicate               to       the<\/p>\n
     appellants the said three names.                          It is seen that<\/p>\n
     thereafter on 10.9.1985 the appellants furnished to<\/p>\n
     the     respondents     three          names       and       requested             the<\/p>\n
     respondents to select one person for being appointed<\/p>\n
     as Arbitrator in terms of Clause 55 of the tender<\/p>\n
     contract.       The said letter was replied to by the<\/p>\n
     respondents      by    letter          dated       24.9.1985             and       the<\/p>\n
     respondents     took    a       stand       that     as     the      terms         and<\/p>\n
     conditions prescribed in Clause 55 of the tender<\/p>\n
     contract were not complied with no further action<\/p>\n
     can   be   taken      for    the       purpose        of      referring            the<\/p>\n
     dispute to arbitration.                That letter dated 24.9.1985<\/p>\n
     was treated by the appellants as the circumstance<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                4<\/span><\/p>\n
      viz.     Failure   of    Machinery        for      the      purpose          of<\/p>\n
      appointment of Arbitrator by consent of both the<\/p>\n
      parties as envisaged under Rule 55 of the tender<\/p>\n
      contract.\n<\/p>\n
    2. Mr.S.S.Banhati who was concerned with the present<\/p>\n
      appellants     instituted     Misc.     Application            No.581         of<\/p>\n
      1986 in the Court of Civil Judge, Senior Division,<\/p>\n
      Pune for appointment of the Arbitrator in accordance<\/p>\n
      with the provisions of Section 8 of the Arbitration<\/p>\n
      Act, 1940 (for short said Act).                  According to the<\/p>\n
      appellants on account of various developments which<\/p>\n
      took place between the appellants and respondents in<\/p>\n
      the matter of referring the dispute to Arbitrator,<\/p>\n
      the Arbitrator could not be appointed by consent and<\/p>\n
      therefore the Court had power to appoint Arbitrator<\/p>\n
      under Section 8 of the Arbitration Act, 1940,                                by<\/p>\n
      exercising the powers conferred upon the Court in<\/p>\n
      accordance     with     the   provisions        of      Section           8(1)<\/p>\n
      (Clause a) of said Act.          It must be mentioned that<\/p>\n
      notice    of   this   application       was      served         upon        the<\/p>\n
      respondents     and   the     learned    Civil         Judge,         Senior<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                   5<\/span><\/p>\n
      Division,    Pune,     by       his    Judgment       and      Order        dated<\/p>\n
      27.2.1987 granted the said application and appointed<\/p>\n
      Shri    R.G.Kulkarni,       Superintending            Engineer           as     the<\/p>\n
      sole     Arbitrator    to       decide      the      dispute          (claims)<\/p>\n
      raised by the present applicant.\n<\/p>\n
    3. Record shows that Mr.R.G.Kulkarni who was appointed<\/p>\n
      as     Arbitrator     took        charge     of     the       dispute           and<\/p>\n
      performed the job as an Arbitrator.\n<\/p>\n
                       ig                                       Before the Ld.\n<\/p>\n
      Arbitrator Mr.Kulkarni the appellants put up their<\/p>\n
      claim.      The respondents herein also lodged their<\/p>\n
      counter claim and the claim of the appellants as<\/p>\n
      well as the claim of the respondents were attended<\/p>\n
      to by the learned Arbitrator Mr.Kulkarni.                                  It is<\/p>\n
      seen that appropriate opportunity was given to both<\/p>\n
      the sides to present their respective cases and the<\/p>\n
      learned    Arbitrator        by    his     award     dated        22.10.1998<\/p>\n
      gave his ruling and declared the award.                           Thereafter<\/p>\n
      this    award   was    filed          in   the    Court        at     Pune        on<\/p>\n
      31.10.1988.      This was done by the appellant as a<\/p>\n
      successful party was required to apply for decree in<\/p>\n
      terms of the award.               The application was filed by<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                6<\/span><\/p>\n
      the   present    appellants      requesting             the       concerned<\/p>\n
      Court for converting the award into decree.                                   The<\/p>\n
      application was numbered as Special Civil Suit No.<\/p>\n
      1091 of 1988.\n<\/p>\n
    4. As per the provisions of Section 30 of the said Act,<\/p>\n
      the respondents herein filed Civil Misc. Application<\/p>\n
      No.12 of 1989 praying that the award passed by the<\/p>\n
      learned     Arbitrator
\n                        ig         should    be       set       aside.              The<\/p>\n
      proceedings filed by the present appellants as well<\/p>\n
      as the Civil Misc. Application No.12 of 1989 came to<\/p>\n
      be tagged together and the said proceedings were
\n                                      th
\n      assigned to the Learned 6            Joint Civil Judge, Senior<\/p>\n
      Division,    Pune,    (Hereinafter          referred           to     as      the<\/p>\n
      learned     Judge).      The     learned          Judge         heard         the<\/p>\n
      respective parties and passed the following Order<\/p>\n
      dated 15.3.1990.\n<\/p>\n
            The award in the instant case is set aside.\n<\/p>\n
              Civil Misc. Application No.12\/1989 is allowed<\/p>\n
        and the impugned award is set aside as found non-\n<\/p>\n
        est and void-ab-initio.            As the award is set aside<\/p>\n
        there     is   no   necessity       to      pass        a     decree          in<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                   7<\/span><\/p>\n
        pursuance       thereof         under     Section          17       of       the<\/p>\n
        Arbitration Act.\n<\/p>\n
               Considering the circumstances of the case, I<\/p>\n
        further find and order that both the parties to<\/p>\n
        bear their own costs of these proceedings.\n<\/p>\n
          Decree be drawn accordingly<\/p>\n
    5. By the said award the Special Civil Suit No.1091 of<\/p>\n
      1988 was dismissed.\n<\/p>\n
                        ig            The Civil Misc. Application No.<\/p>\n
      12 of 1989 was granted and the award was set aside.\n<\/p>\n
      Being aggrieved by this Judgment and Order dated<\/p>\n
      15.3.1990,    the     appellants        have     filed        the      present<\/p>\n
      First Appeal.         Before this Court, learned Senior<\/p>\n
      Counsel    Mr.Rajadhyaksha          and     learned         Advocate           Mr.<\/p>\n
      Patil and AGP Mrs.Mulekar were heard on the question<\/p>\n
      of correctness of Order dated 15.3.1990.                               Learned<\/p>\n
      Senior    Counsel     Mr.       Rajadhyaksha         read       to     me      the<\/p>\n
      provisions       of   Clause      54    and     55     of      the       tender<\/p>\n
      contract    as    well   as       the     proceedings          which         were<\/p>\n
      initiated        by    the        present        appellants                being<\/p>\n
      Application under Section 8                   of the said Act and<\/p>\n
      Order passed below it, and text of the award which<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                      8<\/span><\/p>\n
     came     to       be    attended      to     by     the      learned           Judge.\n<\/p>\n
     Learned        Senior          Counsel       Mr.        Rajadhyaksha                 has<\/p>\n
     submitted that if one reads all these proceedings it<\/p>\n
     is     clear       that     both       the        parties,          namely           the<\/p>\n
     appellants         and    the       respondents        were       in     agreement<\/p>\n
     that the disputes raised by the appellants as well<\/p>\n
     as     the     respondents           could        be    referred            to       the<\/p>\n
     Arbitrator.            He further submitted that provisions of<\/p>\n
     Clause       55    in    the
\n                             ig      tender       contract           indicated            the<\/p>\n
     procedure for appointment of Arbitrator.                               He further<\/p>\n
     submitted that the record clearly indicates that in<\/p>\n
     view of certain developments                       the Arbitrator could<\/p>\n
     not be appointed in accordance with the machinery<\/p>\n
     set out in accordance with Clause 55 of the tender<\/p>\n
     Contract and therefore the present appellants were<\/p>\n
     required to file application under Section 8 of the<\/p>\n
     said Act.          He pointed out that the concerned Court<\/p>\n
     which entertained the said application and appointed<\/p>\n
     Mr.R.G.Kulkarni as an Arbitrator.                          He stressed that<\/p>\n
     this     Order          appointing         Mr.R.G.Kulkarni                was        not<\/p>\n
     challenged by the respondents and the respondents<\/p>\n
     appeared       before      Mr.R.G.Kulkarni             opposed          the      claim<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                   9<\/span><\/p>\n
     of the appellants, tendered their counter claim and<\/p>\n
     invited the Arbitrator to pass the award.                              Learned<\/p>\n
     Senior Counsel Mr. Rajadhyaksha therefore submitted<\/p>\n
     that the way in which the developments took place in<\/p>\n
     the matter clearly indicate that both the parties<\/p>\n
     wanted to resolve the dispute through Arbitration.\n<\/p>\n
     Learned    Senior       Counsel      Mr.Rajadhyaksha               submitted<\/p>\n
     that the learned Judge who passed the Order dated<\/p>\n
     15.3.1990 erred in coming to the conclusion that the<\/p>\n
     Arbitrator appointed under                 Section 8 of the said<\/p>\n
     Act was not proper.                 Learned Senior Counsel Mr.<\/p>\n
     Rajadhyaksha         submitted      that        if     one     appreciates<\/p>\n
     clause 55 of the Tender Contract it would clearly go<\/p>\n
     to show that if due procedure set out in clause 55<\/p>\n
     was    acted     upon    by       both    the        parties       the       said<\/p>\n
     Arbitrator would have been appointed by consent of<\/p>\n
     both     the     parties.            He     submitted              that         on<\/p>\n
     interpretation of clause 55 of tender contract it<\/p>\n
     should have been held that procedure for appointment<\/p>\n
     of    arbitrator      was        Appointment         of   Arbitrator             by<\/p>\n
     Consent    and once no Arbitrator was appointed by<\/p>\n
     consent,       the   party       which    was    intending           to      have<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                10<\/span><\/p>\n
     Arbitrator appointed could resort to provisions of<\/p>\n
     Section 8 of the said Act and call upon the Court to<\/p>\n
     appoint the Arbitrator.             Learned Senior               Counsel Mr.<\/p>\n
     Rajdhyaksha contended that the procedure followed in<\/p>\n
     Section 8 of the said Act was attended to by the<\/p>\n
     appellants and the Court passed an Order appointing<\/p>\n
     Mr.R.G.Kulkarni         as      Arbitrator               and         therefore<\/p>\n
     appointment      of    abritrator        was        proper.              Learned<\/p>\n
     Senior Counsel Mr. Rajadhyaksha took me through the<\/p>\n
     contents    of     paragraph        10   of     impugned           Order         and<\/p>\n
     submitted that the learned Judge erred in arriving<\/p>\n
     at   conclusion        that    the       Arbitrator             was       to       be<\/p>\n
     appointed     by      named    Authority.                Learned           Senior<\/p>\n
     Counsel Mr. Rajadhyaksha submitted that the learned<\/p>\n
     Judge wrongly resorted to the judgment in the case<\/p>\n
     of Union of India vs. M\/s.Ajit Mehta and Associates,<\/p>\n
     Pune and Others<\/a> reported in AIR 1990, Bombay 45.                                   He<\/p>\n
     submitted that reference to this judgment, and in<\/p>\n
     particular    reference        to    paragraph           9    of      the      said<\/p>\n
     judgment was incorrect and there was nothing like<\/p>\n
     Arbitrator being appointed by the named authority in<\/p>\n
     so far as this case is concerned.                          Learned Senior<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                 11<\/span><\/p>\n
      Counsel       Mr.   Rajadhyaksha    therefore          submitted             that<\/p>\n
      the     learned       Judge     erred     in     arriving            at       the<\/p>\n
      conclusion that Clause 55 of the tender contract<\/p>\n
      goes     to    show      that     the     Arbitrator          was       to     be<\/p>\n
      appointed by named Authority.               He submitted that if<\/p>\n
      this submission of his is accepted by this Court,<\/p>\n
      then the appointment of R.G.Kulkarni will have to be<\/p>\n
      treated as properly made and then Special Civil Suit<\/p>\n
      NO.1091 of 1988 as well as Civil Misc. Application<\/p>\n
      No.12 of 1989 filed by the respondents will have to<\/p>\n
      be remanded to same Court which decided both the<\/p>\n
      proceedings for decision on merits as the learned<\/p>\n
      Judge    who    passed    the    Order     on   15.3.1990            has      not<\/p>\n
      passed Orders on both the proceedings on merits.\n<\/p>\n
    6. Learned Counsel Mr. Patil appearing on behalf of the<\/p>\n
      respondent No.2 opposed the submissions advanced by<\/p>\n
      learned Counsel Mr. Rajadhyaksha.                 He contended that<\/p>\n
      Clause 55 of the tender Contract, if construed in<\/p>\n
      proper    manner      would     clearly    go    to     show       that       the<\/p>\n
      Chief Engineer of Irrigation Department, Specified<\/p>\n
      Projects, Pune was the authority named in Clause 55<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                    12<\/span><\/p>\n
      for the purposes of appointment of Arbitrator and<\/p>\n
      because    Arbitrator             was   not        appointed           by      Chief<\/p>\n
      Engineer, Irrigation Department, Specified Projects,<\/p>\n
      Pune the appointment of R.G.Kulkarni as Arbitrator<\/p>\n
      was not proper.          Learned Counsel Mr. Patil tried to<\/p>\n
      support the Order passed by the learned Judge who<\/p>\n
      rejected both the proceedings and contended that the<\/p>\n
      Order    impugned       in    this      First      Appeal         is     properly<\/p>\n
      passed and no interference is required.\n<\/p>\n
    7. Learned    Counsel          Mrs.        Mulekar           supported               the<\/p>\n
      submissions advanced by learned Counsel                            Mr.Patil.\n<\/p>\n
    8. After   having    considered           the    rival        submissions,              I<\/p>\n
      hold that the point required to be decided by this<\/p>\n
      Court is whether Clause 55 of the tender Contract<\/p>\n
      lays     down     the        procedure         for        appointment                of<\/p>\n
      Arbitrator by consent.              Once the finding is recorded<\/p>\n
      in that behalf, further views can be expressed by<\/p>\n
      this Court.       A perusal of Clause 55 of the tender<\/p>\n
      Contract    would       clearly         go    to    show        that        if     the<\/p>\n
      dispute is to be referred to the Arbitrator between<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                               13<\/span><\/p>\n
      the     appellants    and    the        respondents           the        Chief<\/p>\n
      Engineer, Irrigation Department, Sp. Projects, Pune,<\/p>\n
      in the first place was required to suggest name of<\/p>\n
      three persons and the present appellant was required<\/p>\n
      to accept one of them so that the Order can be<\/p>\n
      passed by the Chief Engineer for appointment of that<\/p>\n
      person as Arbitrator.          It also shows that if no<\/p>\n
      steps are taken by the Chief Engineer to give the<\/p>\n
      list of three persons then it was for the appellant<\/p>\n
      to give the names of three persons and                            then the<\/p>\n
      Chief Engineer was required to accept one of them.\n<\/p>\n
      This will clearly go to show that whosoever would<\/p>\n
      have been appointed as Arbitrator either from the<\/p>\n
      list given by the Chief Engineer or from the list<\/p>\n
      given by the Appellants would have been                          appointed<\/p>\n
      by consent of     both the parties            as both of them had<\/p>\n
      given    their   willingness       to    accept       the       person         as<\/p>\n
      Arbitrator.\n<\/p>\n
    9. In view of the aforesaid observations, I hold that<\/p>\n
      the   procedure      prescribed     for     the       appointment              of<\/p>\n
      Arbitrator between the appellant and respondents was<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                    14<\/span><\/p>\n
       Appointment of Arbitrator by Consent .                               I also hold<\/p>\n
      that    in   the       event      of    failure          of      machinery            for<\/p>\n
      appointment of          Arbitrator by Consent                       as above the<\/p>\n
      party   which       was      interested           in     having         Arbitrator<\/p>\n
      appointed     had       to    go    to      the      Competent            Court         as<\/p>\n
      provided under Section 8 of the said Act.\n<\/p>\n
    10.I now come to the observations of the learned Judge<\/p>\n
      who passed the impugned Order.\n<\/p>\n
                         ig                                    The learned Judge<\/p>\n
      has observed as follows:\n<\/p>\n
       Considering the procedure given for appointment of<\/p>\n
      the arbitrator as contemplated under clause 55, it<\/p>\n
      could be see that the arbitrator is to be appointed<\/p>\n
      in a given procedure by the claimant separately viz.\n<\/p>\n
      The Chief Engineer and if he failed to appoint the<\/p>\n
      arbitrator        as    provided            then       by     the       contractor<\/p>\n
      himself.          Therefore,           it    is    the       case       where         the<\/p>\n
      arbitrator is not to be appointed by consent of both<\/p>\n
      the parties, but it is to be appointed by the named<\/p>\n
      authority firstly by the Chief Engineer and on its<\/p>\n
      failure      in    prescribed           manner         by     the       contractor<\/p>\n
      himself,      and       therefore,           the         ruling          cited          is<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                    15<\/span><\/p>\n
      aplicable in the instant case as appointment of the<\/p>\n
      arbitrator by name under Section 8 by the Court is<\/p>\n
      itself        illegal            and       without              jurisdiction.\n<\/p>\n
      Consequently the proceedings before the arbitrator<\/p>\n
      are vitiated and must be observed categorically as<\/p>\n
      void and hence award passed by the arbitrator is<\/p>\n
      void-ab-initio and non-est.\n<\/p>\n
    11.In my view this observation would be contrary to<\/p>\n
      the scheme which was provided under Clause 55 of the<\/p>\n
      tender condition and there was no question of either<\/p>\n
      Chief     Engineer          or     the     representative                  of       the<\/p>\n
      Appellants      appointing             a    particular               person           as<\/p>\n
      Arbitrator.           The clause 55 of tender contract is<\/p>\n
      very clear viz. three names would originate                                       from<\/p>\n
      one   side    and       one       name     out       of    them      was      to      be<\/p>\n
      accepted.           Whether        the     three          names       would         get<\/p>\n
      originated     at     the        instance       of    Chief        Engineer           or<\/p>\n
      appellant      was     not         relevant.          In       the       end        the<\/p>\n
      appointment         would     be    by     consent          and       there         was<\/p>\n
      nothing      like    appointment           of    Arbitrator             by      named<\/p>\n
      Authority.      After having read the impugned Order, I<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                  16<\/span><\/p>\n
      am    inclined     to    observe     that       the     learned           Judge<\/p>\n
      without any specific reasons              introduced the concept<\/p>\n
      of appointment of Arbitrator by                 Named Authority                in<\/p>\n
      so far as the present case is concerned.                             None of<\/p>\n
      the     parties     ever        thought     of        Appointment               of<\/p>\n
      Arbitrator by       Named Authority .               In my view, the<\/p>\n
      learned Judge who passed the impugned Order without<\/p>\n
      any specific reasons and justification                        came to the<\/p>\n
      conclusion that the appointment of the Arbitrator<\/p>\n
      was to be made by the             Named Authority .                 He erred<\/p>\n
      in coming to the conclusion that tender contract<\/p>\n
      introduced the concept of appointment of Arbitrator<\/p>\n
      by    Named Authority .\n<\/p>\n
    12.For the aforesaid reasons, the observations of the<\/p>\n
      learned    Judge    in     the    impugned       judgment           to      that<\/p>\n
      extent     will have to be set aside.                      Once this is<\/p>\n
      done, the final Order passed by the impugned Judge<\/p>\n
      will also have to be set aside as the appellant as<\/p>\n
      well as respondents must get opportunity to present<\/p>\n
      their points before the Court to enable the learned<\/p>\n
      Judge     to   decide      whether        the    award          should          be<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                    17<\/span><\/p>\n
      converted into decree or it should be set aside.\n<\/p>\n
      This will mean that both the proceedings will have<\/p>\n
      to    be     remanded       to     the    concerned            Court.              The<\/p>\n
      concerned      Court       will    have    to        give    chance         to     the<\/p>\n
      appellant       as    well        as     the     respondents              in       the<\/p>\n
      respective proceedings and pass the final Order.\n<\/p>\n
    13.In    view   of     the    aforesaid          discussion,            the      first<\/p>\n
      appeal is being disposed of by passing the following<\/p>\n
      Order:\n<\/p>\n
                                    ORDER<\/p>\n
                                                                                            th
\n      i. Judgment & Order dated 15.3.1990 passed by the 6<\/p>\n
           Joint    Civil     Judge,         Senior        Division,           Pune        in<\/p>\n
           Special Civil Suit No.1091 of 1988 filed by the<\/p>\n
           present appellants and the Civil Misc. Application<\/p>\n
           No.12 of 1989 filed by the present respondents is<\/p>\n
           set aside.\n<\/p>\n
      ii.Special      Civil       Suit       No.1091       of     1988      and      Civil<\/p>\n
           Misc. Application No.12 of 1989 are restored to
\n                                                      th
\n           the file of the Court of 6                       Joint Civil Judge,<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                                    18<\/span><\/p>\n
       Senior    Division,             Pune,     Accordingly,                 both       the
\n                                                                                 th
\n       proceedings are remanded to the Court of 6                                      Joint<\/p>\n
       Civil Judge, Senior Division, Pune.\n<\/p>\n
     iii.The record and proceeding be sent back to the<\/p>\n
                       th
\n       Court of 6            Joint Civil Judge,Senior Division,<\/p>\n
       Pune.\n<\/p>\n
                                                                      th
\n     iv.Upon receipt of the record by the 6
\n                    ig                                                     Joint Civil<\/p>\n
       Judge,     Senior          Division,      Pune,           he        shall       issue<\/p>\n
       notices    to        the    appellants             as    well        as     to    the<\/p>\n
       respondents          and    fix     the       date        for       hearing        of<\/p>\n
       Special Civil Suit No.1091 of 1988 and Civil Misc.\n<\/p>\n
       Application No.12 of 1989 and that he shall hear<\/p>\n
       and dispose of these two proceedings on merits in<\/p>\n
       accordance with the provisions of law.                                         It is<\/p>\n
                                                     th
\n       hereby    ordered          that    the    6         Joint       Civil          Judge,<\/p>\n
       Senior Division, Pune to whom the proceedings are<\/p>\n
       remanded     shall         hear     and       dispose          of     both        the<\/p>\n
       proceedings          as     expeditiously                as    possible           and
\n                                  th
\n       preferably by 30                 January, 2010.                 It is hereby<\/p>\n
       clarified    that          no    views    are           expressed         by     this<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>
\n                           19<\/span><\/p>\n
       Court   on   the   merits   of     the        aforesaid             two<\/p>\n
       proceedings.\n<\/p>\n
     v. In the facts and circumstances of the case there<\/p>\n
       shall be no Order as to costs.\n<\/p>\n
                                             (R.Y.Ganoo, J.)<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:38:44 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court M\/S.Padmashree Enterprises vs The State Of Maharashtra on 12 June, 2009 Bench: R.Y. Ganoo 1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.644 OF 1991 M\/s.Padmashree Enterprises, 851\/2, VRINDAVAN Bhandarkar Institute Road, Erandwane, Pune 411 004, by its Sole Proprietor Shri S.S.Banhattiig ..Appellant (Claimant in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-145327","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nM\/S.Padmashree Enterprises vs The State Of Maharashtra on 12 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-padmashree-enterprises-vs-the-state-of-maharashtra-on-12-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S.Padmashree Enterprises vs The State Of Maharashtra on 12 June, 2009 - 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