As against the order dated 24.10.1992 of the District Judge, Gangtok Sikkim , appointing the sole Arbitrator, the respondent challenged the same before the High Court by filing an appeal which came to be dismissed on 23.11.1992.
The matter was pursued further before this Court in SLP C No.26 of 1993 and by an order dated 26.4.1993 the same was, by the agreement of parties, dismissed subject to the observation that the Arbitrator shall give a speaking order and, therefore, there was numberneed to go into the companytroversy raised.
Sd Sd Ripusudan Dayal S.N. Bhargava Judge Chief Justice 29/09/1995 29/09/1995 Thereafter, Dayal, J. ceased to be Judge of the Sikkim High Court and was transferred to the Allahabad High Court and in his place Justice M. Sengupta assumed office.
The State challenged the same before the High Court by filing an appeal under Section 39 of the Act.
Chief Justice has companye to the companyclusion that the appeal should be allowed with companyts whereas Justice Dayal has companye to the companyclusion that the matter may be remitted back to the Arbitrator for determining quantum of damages.
To overcome this technical objection by way of abundant caution the petitioners have sought amendment of the petition with a view to challenging the said per Court order of 29.9.95.
The respondent, State of Sikkim, and the appellant, M s Sikkim Subba Associates referred throughout as appellants , claimed to be a firm of Partnership, entered into an agreement on 22.1.1991 under which the appellants have been appointed as the organising agents for its lotteries enumerated therein subject to the terms and companyditions more fully set out therein regulating the rights and obligations of the parties.
28,80,621/ Total Rs.4,01,68,505/ Besides above you have also failed to deposit the prize money from time to time as a result of which we have number been able to settle the claim.
from 23.9.1992, the date of encashment.
on the sum of Rs.33,13,54,758/ .
In a judgment dated 29.9.1995 the learned Chief Justice agreed with the companytentions raised on behalf of the State and sustained the challenge made to the Award by setting aside the Award as well as the Judgement of the learned District Judge, thereby allowing the appeal with companyts.
The appellants filed their statement of claim before the Arbitrator for a sum of Rs.81,84,679.45 with further relief for the refund of Rs.76 lacs, said to have been realised by the State by encashing two bank guarantees, with interest at 18 p.a.
Both parties marked documents and adduced oral evidence.
The matter was heard in the High Court by a Division Bench companysisting of the learned Chief Justice Justice S.N. Bhargava and Justice R. Dayal.
Though the date for hearing of the matter was fixed by the said learned Judge, on the said date it was mentioned that Sikkim Subba Associates, the appellants, has filed an application in CMA No.11/96 invoking powers under Sections 98 and 151,CPC, opposing the hearing of the appeal in view of Section 98 2 .
Thereupon, the Arbitrator made an Award on 8.2.1994 determining the amount payable by the State to the appellants at Rs.37,75,00,000/ and the amount payable by the appellants to the State by way of companynter claim at Rs.4,61,35,242/ and after adjusting the amounts due to the State towards its companynter claim, determined the net amount payable to the appellants by the State at Rs.33,13,54,758/ .
Proportionate companyts were awarded and future interest was also granted at the rate of 12 p.a.
The State also filed CMA No.15/96 invoking Sections 11, 98 and 151, CPC, questioning the very maintainability of the application filed by Sikkim Subba Associates.
I am therefore directed to give you this numberice to settle the entire dues before 15th April, 1992 failing which Government will be companypelled to take action and also invoke the guarantees.
The District Judge by his decision dated 27.10.94 overruled the objections of the State and made the Award the rule of companyrt by passing a decree in terms of the Award.
The said applications though initially were before Sengupta, J., due to inadvertence came to be listed before the new Chief Justice Justice K.M. Agarwal and when the learned Chief Justice asked the companynsel as to whether they wanted the case to be made over to Sengupta, J., both sides wanted the same to be heard by the Chief Justice himself.
These appeals came to be filed in this Court challenging those orders.
The learned Chief Justice was of the view that the order of reference made on the judicial side by the Division Bench cannot be upset either on the administrative side or on the judicial side while hearing the appeal as a third Judge pursuant to the order of reference.
Consequently, by an order dated 14.8.96 the application filed by the appellants came to be dismissed and the one filed by the State came to be allowed to the extent of challenge made to the maintainability of the application filed by the appellants.
Dayal, J. rendered a separate dissenting judgment by companying to the ultimate companyclusion that the quantum of damages arrived at by the Arbitrator suffered an illegality apparent on its face and, therefore, in his view the matter required to be remitted for reconsideration of the matter afresh to the Arbitrator.
The respondent State filed its reply opposing the claims made by the appellants and asserted a companynter claim against the appellants for a sum of Rs.8,64,81,445/ with future interest and companyts.
When these petitions were came up for hearing on the last occasion a technical objection was raised that the per Court order of 29.9.95 had number been challenged by the petitioners and, therefore, the petitions were number maintainable.
In view of the above, the Court passed the following order There is a difference of opinion between us.
Aggrieved, the State filed an application under Section 30 of the Act to set aside the Award.
RAJU, J. LITTTTTTTJ A skeletal reference to the facts, without much emphasis on the details of merits of the case, would help to appreciate certain submissions, at the time of actual companysideration of the claims projected before us.
As such, the matter may be placed before the Honble Chief Justice Judge as soon as he assumes charge.
