P.P.BHATT,J. - (1.) THE present revision application is filed under Section 115 of the Code of Civil Procedure, being aggrieved and dissatisfied by the order dated 17.06.1992 passed by the learned Sub Judge, Ranchi in Misc. Case No. 20 of 1992, whereby the application of the petitioner made under Section - 9 of the Arbitration Act, 1940 regarding cancellation/setting aside the appointment of Shri H. K. Lal, Ex - Principal, Chhotanagpur Law College, Ranchi as sole arbitrator, has been rejected and the alternative prayer to allow the petitioner further time to appoint an arbitrator of their choice and to stay the further proceeding by the opposite party before the sole Arbitrator, has also been rejected.
(2.) THE brief facts of the case are as under: - (i) The opposite party no. 1 was engaged in manufacturing of computer stationery at Ranchi in the industrial area. The Canara Bank, Ranchi as a mortgagee and the opposite party no. 1 as mortgagor were jointly 'Insured' by the petitioner. (ii) The petitioner under 1/5 Policy No. 33201/01/1000/923/88 covering the period of 02.11.1988 to 01.11.1989 had insured the stock of paper, computer paper, carbon paper, chemicals finished or unfinished raw materials, etc. for a sum of Rupees 10 lakhs only. The risks or perils come under the policy were fire, R.S.O. explosion, etc. as per Fire Policy 'C' in accordance with terms and conditions of Fire Tariff. (iii) Similarly, under 1/5 Policy No.33201/01/7/33201/01/7/01924/88 covering the period of 02.11.1988 to 01.11.1989, the petitioner had insured the building, plant and machinery and Furniture, Fixtures and Fittings for the value of Rs.32 lakhs 5 thousand. The risk covered were fire, R.S.D. as per policy 'C'. The Bihar State Financial Corporation Ltd. was the mortgagee and the opposite party as mortgagor and as such, were jointly insured. (iv) On 05.07.1989, at about 10.30 PM, it is alleged that due to short - circuit; fire broke out in the premises of the opposite party no. 1, wherein, insured goods and articles were kept. The opposite party informed the concerned Police Station and also to the petitioner. The petitioner, immediately, thereafter appointed a surveyor to inspect the factory and assess the loss, if any suffered by the opposite party no. 1. (v) On 8.8.1988, the representative of M/s. Mehta and Padamsey, surveyor along with the Director of the opposite party no.1, namely, Shri Pravin Kumar, carried out their joint inspection and recorded the observation, which was duly acknowledged by the parties. After holding several rounds of discussion with the insured, the surveyor had assessed the loss with regard to machinery at Rs.2,95,000/ -. Initially the insured had raised objection to the estimate made by the surveyor. But it appears that ultimately, when a lump sum offer of Rs.2,95,000/ - was made without any deduction on account of depreciation towards the final assessment of loss in respect of machinery, the opposite party no. 1, i.e. 'Insured' agreed and accepted it as full and final settlement. (vi) Similarly, M/s. Mehta and Padamsey Surveyors (P) Ltd. and A. K. Mukherjee conducted the survey of loss suffered by the opposite party no. 1 in respect of stock. The surveyors after examining all the relevant records and after preparing a joint inventory of the damages observed, which was jointly signed by the surveyor and the insured, assessed the loss at Rs. 7,54,865/ -, which was agreed and accepted by the insured as full and final settlement of the claim. (vii) It is the case of the petitioner that towards the final payment of the above two claims as agreed between the parties, the opposite party received Rs.7,53,315 and Rs.2,98,750/ - by cheques and acknowledged receipt of the said two cheques in full and final discharge of claims. The discharge vouchers were signed by him on 28.10.1991, as token of receipt of the above amount and also as a token of final discharge of the claims. The discharge vouchers were also jointly signed by the respective mortgagee i.e. Bihar State Financial Corporation, Ranchi and the Canara Bank, Ranchi. (viii) According to the petitioner, after signing of the disbursement voucher and on receipt of the cheque of the amount agreed upon, the claim finally stood discharged and the insurance policy of the Opposite party No. 1 stood automatically terminated and no further claim is pending against the Insurance Company. (ix) On 10.01.1992, Shri Bemki Prasad, Advocate, Ranchi served a notice to the petitioner demanding appointment of the arbitrator by the petitioner and informed that the opposite party No. 1 has already appointed, Mr. H. K. Lal, Ex -Principal, Chhotanagpur Law College, Ranchi as their arbitrator. It was also stated in the said notice that a dispute has arisen regarding payment of interest, damages and lose of profit, on account of delay in settling the claim. It was also stated that in case of default to appoint Arbitrator within two months; Shri H. K. Lal will act as sole arbitrator and decide the dispute. (x) It has also come on record that during the pendency of this review the sole arbitrator Shri H.K. Lal has passed an award dated. 29 -06 -1992 and the execution case is also pending. It appears that earlier the revision application filed by the Insurance Company against the dismissal of Misc. Case No. 20 of 1992 was dismissed by this Court vide its order dated 05.07.1993. Thereafter, being aggrieved and dissatisfied by the said order, the Insurance Company preferred Civil Appeal No. 1678 of 1994, S.L.P. (C) No. 16399 of 1993 and the said S.L.P.s was allowed by the Hon'ble Supreme Court vide its order dated 07.03.1994 and accordingly, the matter was remanded to the High Court. The relevant abstract of the order is quoted hereinbelow: - "Special Leave granted. Heard counsel on both sides. Two grievances were made before us by the learned counsel for the appellant -Insurance Co. The first was that the appellant -Insurance Company had paid two amounts of Rs.2,98,750/ - and Rs.7,53,615/ - under the vouchers at pages 45 and 46 of the paper book dated 14.11.1991. The printed recital on these vouchers state that the payment is in full and final discharge of claims upon them as per the said particulars i.e. the particulars given in the voucher. On this basis it was said that the dispute was finally settled by payment and there was a valid discharge and hence there was no question of invoking clause 13 of the Contract for going to arbitration. The appellant had filed the petition in the Court of the Special Sub -Judge Ranchi, under Section 9 of the Arbitration Act, 1940, to prevent the sole arbitrator from entering upon arbitration and making an award. In the alternative it was prayed that in view of section 9 (b), proviso, the appellant should be given an opportunity to appoint their arbitrator, should the Court rule against them on the first point. It appears that the Court recorded the finding without any material or evidence placed before it to the following effect: "I find that the opp. Party signed on the disbursement vouchers only to receive the amount and not in full and final settlement of claims." Counsel for the appellant rightly objects to this finding having been recorded without parties having had an opportunity to lead evidence in that behalf even if that was taken as a disputed fact. The High Court did not examine the matter from that point of view nor make a speaking order. We are of the opinion that this was not a matter which the High Court should have disposed of without recording reasons particularly when the finding recorded above was likely to fetter even the arbitrator. We do not desire to express any opinion as to the correctness or otherwise of the contention raised but, we think, if the Court were to enter upon that disputed fact, the parties should have had an opportunity to adduce evidence. That is not to say it is necessary for the Court to go into that factual aspect but if it did so it could not have recorded the finding without the parties being given an opportunity to adduce evidence. As regards the second contention also the High Court has not expressed any opinion. In the circumstances we feel that the proper course is to set aside the order of the learned Single Judge of the High Court and remit the matter to the High Court for disposal in accordance with law bearing in the mind the aforesaid two contentions urged before us. Once again we clarify that we do not express any opinion on either of the two contentions. We would only like the High Court to apply its mind on both the contentions and record a speaking order. The Appeal will stand disposed of accordingly with no order as to costs. (emphasis supplied)" Thereafter, once again the said revision was heard and dismissed vide order dated 23rd May, 1995. The applicant/insurance company once again moved S.L.P. before the Hon'ble Supreme Court in S.L.P.(C) No. 22013 of 1996. The said S.L.P. was allowed and again the matter was remanded to the High Court as per the order dated 07th May, 1996, passed by the Hon'ble Apex Court. The relevant abstracts of the order passed by the Hon'ble Supreme Court of India in S.L.P. (C) No. 22013 of 1996 is reproduced hereinbelow : - "Leave granted. The impugned order dated 23rd May, 1995, passed by Narain Roy, J. of the Patna High Court in Civil Revision No. - 173 of 1993 purports to be in pursuance of the order dated 7th March, 1994 passed by this court in Civil Appeal No. - 1618 of 1994 in this very matter between the same parties at an earlier stage. The submission of learned counsel for the appellant is that the impugned order of the learned Single Judge of the High Court is not in accordance with this Court's order dated 7th March, 1994, when this matter had come up earlier to this Court. In Civil Appeal No. - 1618 in this court, one of the contentions of the appellant was that the payment made by the appellant to respondent No. - 1 was in full and final settlement of the entire claim and, therefore, there was in existence no dispute between them to confer jurisdiction on the arbitration to make any award. This court in its order dated 7th March, 1994 set aside the earlier order of the High Court stating that this point was required to be decided by the High Court giving reasons for its conclusion on this question of fact, and if, necessary the parties were also be given opportunity to adduce evidence on points. A perusal of the order dated 7th March, 1994 clearly indicates that while remitting the matter to the High Court it made plain that this was one of the points which had to be decided by the High Court after permitting the parties to adduce evidence, if any, and by giving reasons in support of the conclusion reached on this question of fact. Admittedly, the impugned order made by the learned Single Judge of the High Court is not in accordance with requirements, clearly specified in this court's order dated 7th March, 1994. It is sufficient in for us to observe that the directions given in this court's order dated 7th March, 1994 require to be complied with strictly and the matter has to be disposed of afresh in accordance therewith. Consequently, the appeal is allowed, the impugned order dated 23rd March, 1995 passed in Civil Revision No.173/93 is set aside and the High Court is required to decide the Civil Revision afresh in accordance with law as indicated above. We also direct that the award made in favour of respondent No.1 shall not be executed till the decision of the Civil Revision and it shall be subject to the final outcome thereof."
(3.) IN view of the above order passed by the Hon'ble Apex Court, this Court vide its order dated 01.09.2003, passed the following order : - "The direction of the Apex Court referred to above is very clear whereby the parties to this case have to adduce only regarding the disputed facts which is to the effect as to whether the opposite party has signed on the disbursement voucher only to receive the amount and not in full and final settlement of the claim. There is no direction of the Apex Court to give an opportunity to adduce the evidence regarding the appointment of Shri H.K. Lal as Arbitrator in the said arbitral proceeding as well as, as to whether the petitioner had participated in the said arbitral proceeding or not. Viewed thus, I see no substance in the contention of the learned counsel for the petitioner for according him any opportunity of adducing evidence on the question of appointment of Shri H.K. Lal as Arbitrator for the opposite party as well as, as to whether the petitioner has participated in the said arbitral proceeding or not. In view of the direction of the Apex Court and with the consent of both the parties that the evidence has to be recorded in this case in respect of the disputed fact referred to above, I direct the learned court below to record the evidence of the parties to this case and remit the evidence so recorded including documentary evidence, if any, admitted into evidence to this Court as early as possible but positively within three months from the date of receipt of this order. Both the parties are directed to appear before the learned court below on 15th of September 2003 with their witnesses for recording their evidence. Let the lower court record of Misc. Case No. 20 of 1992 be sent to the court of Sub -Judge I, Ranchi forthwith with a copy of this order. Let this case be listed under the heading "For Hearing" immediately soon after the receipt of the record of lower court below along with the depositions of the witnesses recorded by him." ;