M/S. Kelkar And Kelkar vs M/S. Hotel Pride Executive Pvt. Ltd.

M/s. Kelkar & Kelkar ..Appellant

Versus

M/s. Hotel Pride Executive Pvt. Ltd. ..Respondent

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 06.08.2015 passed by the High

Court of Judicature at Bombay in Writ Petition No.4442

of 1999 by which the High Court, in exercise of Articles

226 and 227 of the Constitution of India, has allowed the

said writ petition preferred by the respondent herein and

has quashed and set aside the award passed by the Signature Not Verified Digitally signed by

learned Arbitrator and has remanded the matter for de DEEPAK SINGH Date: 2022.05.04 17:07:43 IST Reason: 1 novo consideration, the original claimant has preferred

the present appeal.

1.1 The dispute arose between the parties which was the

subject matter of arbitration before the learned

Arbitrator. On the learned Arbitrator declaring the award,

on an application filed by the original claimant – original

plaintiff vide order passed in Exhibit 10 in Regular Civil

Suit No.1022/1996, passed a decree in terms of the

award made by the learned Arbitrator. By the said award

the original respondents were directed to pay to the

original claimants Rs.12,46,663/­.

1.2 Feeling aggrieved and dissatisfied with the award made

by the learned Arbitrator as well as the order passed by

the learned trial Court passed as per Exhibit 10 in

making the award a decree, instead of preferring appeals

under the Arbitration Act, 1940 (hereinafter referred to as

‘the Act’), preferred a writ petition before the High Court

under Articles 226 and 227 of the Constitution of India

mainly on the ground that, before the learned Arbitrator

was appointed, there was non­compliance of Clause 56 of

2 the Articles of Agreement and the procedure as required

under Clause 56 was not followed. By the impugned

judgment and order the High Court has set aside the

award made by the learned Arbitrator on the ground that

the procedure as required under Clause 56 had not been

followed. Consequently, the High Court has remanded

the matter for de novo consideration.

1.3 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, the

original claimant has preferred the present appeal.

2. Having heard learned counsel appearing on behalf of the

respective parties and considering the impugned

judgment and order passed by the High Court, we are of

the opinion that against the award made by the learned

Arbitrator made under the Act and against an order

passed by the learned trial Court making the award a

decree and without availing the alternative statutory

remedy available by way of appeal under the provisions of

the Act, the High Court ought not to have entertained the

writ petition under Articles 226 and 227 of the

3 Constitution of India. When the statute provides a

further remedy by way of appeal against the award and

even against the order passed by the learned trial Court

making the award a decree of the court, the High Court

ought not to have entertained the writ petition and ought

not to have set aside the award, in a writ petition under

Articles 226 and 227 of the Constitution of India. In that

view of the matter the impugned judgment and order

passed by the High Court is unsustainable and the same

deserves to be quashed and set aside.

3. At this stage, learned counsel appearing on behalf of the

respondent has prayed that in that view of the matter,

liberty be reserved in favour of the respondent to take

further recourse to law under the provisions of the Act

which might have been available against the award made

by the learned Arbitrator as well as the order passed by

the learned trial Court as per Exhibit 10 making the

award a decree. It is further prayed to make a suitable

observation that whatever amount is already paid to the

appellant – original claimant may be adjusted subject to

4 the ultimate outcome and the further order that may be

passed in future.

4. In view of the above and for the reasons stated above,

present Appeal succeeds. Impugned Judgment and

Order passed by the High Court is set aside. However,

liberty is reserved in favour of the respondent to take

further recourse to law under the provisions of the

Arbitration Act, 1940 and in accordance with law against

an award made by the learned Arbitrator and the order

passed by the learned trial Court passed as per Exhibit

10 making the award a decree of the court and if such

proceedings are initiated within a period of four weeks

from today, the same be considered in accordance with

law and on its own merits without raising the issue with

regard to limitation. It goes without saying that the

amount already paid to the appellant – original claimant

shall be subject to the ultimate outcome of the

proceeding that may be initiated by the respondent.

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5. In view of the above and for the reasons stated above,

present appeal is allowed to the aforesaid extent only.

However, there shall be no order as to costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (B.V. NAGARATHNA) New Delhi, May 04, 2022.

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