- (1.) BINOD Kumar Roy and N. B. Asthana, JJ. This is an appeal under Section 39 of the Arbitration Act against the judgment and order dated 28-4- 1995 passed by the Civil Judge, Haridwar in Misc. Case No 25 of 1993 and Original Suit No. 27 of 1993. By the impugned order the Civil Judge had rejected Misc Case No. 25 of 1993 preferred by the Superintending Engineer, Eastern Ganga Canal Construction Circle, Haridwar filed under Section 30/33 of the Act and had made the award dated 25-1-1993 as a rule of the Court.
(2.) LEARNED counsel appearing on behalf of the respondent No. 1 raised an objection about the maintainability of this appeal submitting that the appellant State of U. P. not having filed any objection under Section 30/33 of the Act in the court below, this appeal is not maintainable. He referred to paragraph 2 of the counter affidavit dated 25-9-1995 sworn by Sunil Kumar, partner of the firm- respondent No. 1. LEARNED counsel for the respondent No. 1 further contended that the lower court records would show that the objection raised has got substance, thus, be accepted and appeal be dismissed. The relevant facts for the purposes of disposal of the aforementioned objection are in a narrow compass: This appeal by State of U. P. through Superintending Engineer, Eastern Ganga Canal Construction Circle Haridwar. M/s. Inderveer Singh and Man Mohan Singh is the respondent No. l and the make arbitrator L. M. Sircar is the respondent No. 2. The respondent No. 1 firm had filed a claim impleading State of U. P. , through Secretary, Govt. of U. P. , Irrigation Department, Luck-now as opposite party No. 1, Superintending Engineer, Eastern Ganga Canal Construction, Haridwar as opposite party No. 2 and the Executive Engineer, Eastern Ganga Canal Division, Haridwar as opposite party No. 3. The arbitrator who was appointed gave his award dated 25-1-1993 against which objection under Section 30/33 of the Act were filed on 26-2-93 by the Superintending Engineer, Eastern Ganga Canal Construction Circle and Executive Engineer, Eastern Ganga Canal Division I, Najibabad. So this objection the State of U. P. , who is the appellant, was not impleaded as a party. The said objection was directed to be put up along with the records of Arbitration case No. 167 of 1990 and was registered as Misc. case No. 25 of 1993. The award submitted by the Arbitrator was challenged on several grounds including the very appointment of the Arbitrator. From the lower court's record it appears that it was asserted by the appellants that the order of appointment of the Arbitrator has been challenged in an appeal, being First Appeal from Order No. 24 of 1993 in this Court which is still pending. The respondent No. 1 had sued the State of U. P. through Secretary, Irrigation Department, Lucknow, the Superintending Engineer, Eastern Ganga Canal Construction Circle, Haridwar, the Executive Engineer, Eastern Ganga Canal Division III, Haridwar and the Chief Engineer (M. G.) Irrigation Department, Meerut as defendant Nos. 1 to 4 for making a reference under Sections 8 and 20 of the Act in which respondent No. 2 was appointed as an Arbitrator who made his award aforementioned. Undisputedly the State of U. P. , who was sued through the Secretary, Govt. of U. P. , Irrigation Department was not impleaded as a party.
(3.) WE also finds that an application dated 9-12-93 under Order VI, Rule 17 read with Section 151 CPC was filed seeking impleadment of the State of Uttar Pradesh through Superintending Engineer, Ganga Canal Construction Circle, Haridwar etc. stating as follows: "it is submitted that the claimant opposite party in Para 31 of the counter affidavit has raised an objection that the contract in question was entered into between the claimant and the State of Uttar Pradesh. It has been pleaded that the objections filed only by the Superintending Engineer and the Executive Engineer are not maintainable since the State of Uttar Pradesh has not been made a party in the objection. Though it has been ordered that the objection Nos. 1 and 2 are competent enough in their official capacity to challenge the validity of the award, yet it is necessary that in order to meet any legal lacuna the State of Uttar Pradesh which is represented by the Superintending Engineer is also made a party to the objections. " The above petition after contest by respondent was rejected by the court below vide its order dated 28- 2-94 after observing, interalia, that if this amendment is allowed, the defence available to the opposite party (namely the defect of non-filing of any objection by the State of Uttar Pradesh within 30 days of the notice of the filing of the award) shall disappear. WE are further of the view that in absence of the State of Uttar Pradesh, who was defendant No. 1 to the suit, the objection of the appellant was defective. The submission of Mr. Bisaria, learned Standing counsel appearing on behalf of the appellant, that the State of U. P. will be deemed to be an objector is without any substance, in view of the patent fact that the objections were preferred by defendant Nos. 2 and 3 only without impleading the State of U. P. as a party there to. Similarly preference of this appeal on behalf of State of U. P. through Superintending Engineer is of no consequence inasmuch as this appeal has not been filed by the defendant Nos. 2 and reference. The appeal not through Secretary to Government, Irragation. Department but through Superintending Engineer is similarly of no consequence. No decision has been cited before us, in the facts and circumstances like the present one which is apparent from the aforementioned narration of facts, holding that in such an event an appeal on behalf of the State of U. P. has been held to be maintainable.;