THE EXECUTIVE ENGINEER, vs. M.B. PATIL CONSTRUCTIONS LIMITED

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE R DEVDAS WRIT PETITION NOs.113148-113149/2019 (GM-RES) C/W WRIT PETITION NOs.113150-113151/2019 (GM-RES) WRIT PETITION NOs.113152-113153/2019 (GM-RES) WRIT PETITION NOs.113154-113155/2019 (GM-RES)

WP NOs.113148-113149/2019:

BETWEEN:

THE EXECUTIVE ENGINEER, PWP & IWTD, DIVISION, SEDAM, KALABURAGI DISTRICT, NAMED N.LINGARAJU, AGE: 48 YEARS, OCC: EXECUTIVE ENGINEER, R/O; OFFICE OF EXECUTIVE ENGINEER, PWP & IWTD DIVISION, SEDAM, KALABURAGI.

... PETITIONER (BY SRI. DHYAN CHINNAPPA, AAG FOR SRI MANU.K., ADV. & SMT. SUMANGALA CHAKALABBI, ADV.)

AND:

HAVING CORPORATE OFFICE AT 2ND FLOOR,

COMMERCIAL BUILDING NO.1,

OPP: INCOME TAX BUILDING,

SHANKARSHETH ROAD, SWARAGATE,

PUNE-411042, MAHARASHTRA.

REP. BY ITS CHAIRMAN

MALLIKARJUN, THROUGH HIS POA

HOLDER SRI DHANAJI-411042.

RETIRED DISTRICT AND SESSIONS JUDGE,

SOLE ARBITRATOR, KALABURAGI-585102.

... RESPONDENTS (BY SRI. AMEET KUMAR DESHPANDE, ADVOCATE AND SRI SATISH RAICHUR, ADV. FOR R1 R-2 DISPENSED WITH)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED COMMON ORDER DATED 14.08.2019 PASSED BY THE IVTH ADDL. DISTRICT AND SESSIONS COURT, BALLARI (COMMERCIAL COURT) IN AS.NO.65/2019 TO THE LIMITED EXTENT OF THE CONDITION ATTACHED, WHICH REQUIRES THE PETITIONER HERIN TO DEPOST 30% OF THE AWARD AMOUNT AND WHICH READS AS FOLLOWS: “ THE PETITIONER IS DIRECTED TO DEPOSIT 30% OF THE AWARDED AMOUNT AS MENTIONED IN CMP NO.200005 TO 200009/2014 BEFORE THIS COURT WITHIN 4 WEEKS FROM THE DATE OF THIS ORDER IN (“ANNEXURE-A”) AND ETC.

WP NOs.113150-113151/2019:

BETWEEN:

THE EXECUTIVE ENGINEER, PWP & IWTD DIVISION, SEDAM, KALABURAGI DISTRICT, NAMED N.LINGARAJU, AGE: 48 YEARS, OCC: EXECUTIVE ENGINEER, R/O; THE EXECUTIVE ENGINEER, PWP & IWTD DIVISION, SEDAM, KALABURAGI.

... PETITIONER (BY SRI. DHYAN CHINNAPPA, AAG FOR SRI MANU.K., ADV. & SMT. SUMANGALA CHAKALABBI, ADV.)

AND:

HAVING CORPORATE OFFICE AT 2ND FLOOR,

COMMERCIAL BUILDING NO.1,

OPP: INCOME TAX BUILDING,

SHANKARSHETH ROAD, SWARAGATE,

PUNE-411042, MAHARASHTRA.

REP. BY ITS CHAIRMAN

MALLIKARJUN, THROUGH HIS POA

HOLDER SRI DHANAJI VENKATRAO PATIL, R/O: UDGIR, TQ: UDGIR, DIST: LATUR, MAHARASHTRA.

RETIRED DISTRICT AND SESSIONS JUDGE,

SOLE ARBITRATOR, KALABURAGI-585102.

... RESPONDENTS

(BY SRI. AMEET KUMAR DESHPANDE, ADVOCATE AND SRI SATISH RAICHUR, ADV. FOR R1 R-2 DISPENSED WITH)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED COMMON ORDER DATED 14.08.2019 PASSED BY THE IVTH ADDL. DISTRICT AND SESSIONS COURT, BALLARI (COMMERCIAL COURT) IN AS.NO.66/2019 TO THE LIMITED EXTENT OF THE CONDITION ATTACHED, WHICH REQUIRES THE PETITIONER HERIN TO DEPOST 30% OF THE AWARD AMOUNT AND WHICH READS AS FOLLOWS: “ THE PETITIONER IS DIRECTED TO DEPOSIT 30% OF THE AWARDED AMOUNT AS MENTIONED IN CMP NO.200005 TO 200009/2014 BEFORE THIS COURT WITHIN 4 WEEKS FROM THE DATE OF THIS ORDER IN (“ANNEXURE-A”) AND ETC.

4 WP NOs.113152-113153/2019:

BETWEEN:

THE EXECUTIVE ENGINEER, PWP & IWTD DIVISION, SEDAM, KALABURAGI DISTRICT, NAMED MALLIKARJUN, AGE: 59 YEARS, OCC: EXECUTIVE ENGINEER, R/O; OFFICE OF EXECUTIVE ENGINEER, PWP & IWTD DIVISION, SEDAM, KALABURAGI DISTRICT.

... PETITIONER

(BY SRI. DHYAN CHINNAPPA, AAG FOR SRI MANU.K., ADV. & SMT. SUMANGALA CHAKALABBI, ADV.)

AND:

HAVING CORPORATE OFFICE AT 2ND FLOOR,

COMMERCIAL BUILDING NO.1,

OPP: INCOME TAX BUILDING,

SHANKARSHETH ROAD, SWARAGATE,

PUNE-411042, MAHARASHTRA.

REP. BY ITS CHAIRMAN

MALLIKARJUN, THROUGH HIS POA HOLDER SRI DHANAJI-411042.

RETIRED DISTRICT AND SESSIONS JUDGE,

SOLE ARBITRATOR, KALABURAGI-585102.

... RESPONDENTS (BY SRI. AMEET KUMAR DESHPANDE, ADVOCATE AND SRI SATISH RAICHUR, ADV. FOR R1 R-2 DISPENSED WITH)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED

5 COMMON ORDER DATED 14.08.2019 PASSED BY THE IVTH ADDL. DISTRICT AND SESSIONS COURT, BALLARI (COMMERCIAL COURT) IN AS.NO.67/2019 TO THE LIMITED EXTENT OF THE CONDITION ATTACHED, WHICH REQUIRES THE PETITIONER HERIN TO DEPOST 30% OF THE AWARD AMOUNT AND WHICH READS AS FOLLOWS: “ THE PETITIONER IS DIRECTED TO DEPOSIT 30% OF THE AWARDED AMOUNT AS MENTIONED IN CMP NO.200005 TO 200009/2014 BEFORE THIS COURT WITHIN 4 WEEKS FROM THE DATE OF THIS ORDER IN (“ANNEXURE-A”) AND ETC.

WP NOs.113154-113155/2019:

BETWEEN:

THE EXECUTIVE ENGINEER, PWP & IWTD DIVISION, SEDAM, KALABURAGI DISTRICT, NAMED MALLIKARJUN M.S., AGE: 55 YEARS, OCC: EXECUTIVE ENGINEER, R/O; EXECUTIVE ENGINEER, PWP & IWTD DIVISION, RAICHUR.

... PETITIONER

(BY SRI. DHYAN CHINNAPPA, AAG FOR SRI MANU.K., ADV. & SMT. SUMANGALA CHAKALABBI, ADV.)

AND:

HAVING CORPORATE OFFICE AT 2ND FLOOR,

COMMERCIAL BUILDING NO.1,

OPP: INCOME TAX BUILDING,

SHANKARSHETH ROAD, SWARAGATE,

PUNE-411042, MAHARASHTRA.

REP. BY ITS CHAIRMAN

MALLIKARJUN, THROUGH HIS POA HOLDER SRI DHANAJI VENKATRAO PATIL, AGE: 42 YEARS, OCC: BUSINESS, R/O: UDGIR, TQ: UDGIR, DIST: LATUR, MAHARASHTRA.

RETIRED DISTRICT AND SESSIONS JUDGE,

SOLE ARBITRATOR, KALABURAGI-585102.

... RESPONDENTS

(BY SRI. AMEET KUMAR DESHPANDE, ADVOCATE AND SRI SATISH RAICHUR, ADV. FOR R1 R-2 DISPENSED WITH)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED COMMON ORDER DATED 14.08.2019 PASSED BY THE IVTH ADDL. DISTRICT AND SESSIONS COURT, BALLARI (COMMERCIAL COURT) IN AS.NO.67/2019 TO THE LIMITED EXTENT OF THE CONDITION ATTACHED, WHICH REQUIRES THE PETITIONER HERIN TO DEPOST 30% OF THE AWARD AMOUNT AND WHICH READS AS FOLLOWS: “ THE PETITIONER IS DIRECTED TO DEPOSIT 30% OF THE AWARDED AMOUNT AS MENTIONED IN CMP NO.200005 TO 200009/2014 BEFORE THIS COURT WITHIN 4 WEEKS FROM THE DATE OF THIS ORDER IN (“ANNEXURE-A”) AND ETC.

THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

7 ORDER R.DEVDAS J., (ORAL):

In all these petitions, the petitioner has called in question the interim orders passed by the Commercial Court directing the petitioner to deposit 30% of the award amount. 2. Sri Dhyan Chinnappa, learned Addl. Advocate General submits that the impugned orders were passed on 14.08.2019, while an amendment was brought to the Arbitration and Conciliation (Amendment) Act, 1996 vide the Arbitration and Conciliation (Amendment) Act, 2019 which has come into effect on 09.08.2019. The learned Addl. Advocate General, draws the attention of this Court to Section 13 of the Amendment Act which provides that Section 87 has been inserted into the principles Act and Section 87 reads as follows; “87. Unless the parties otherwise agree, the amendments made to this Act by the

8 Arbitration and Conciliation (Amendment) Act, 2015 shall – (a) not apply to -

(i)

arbitral proceedings commenced before the commencement of the Arbitration and Conciliation (Amendment) Act, 2015;

(ii) court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015; (b) apply only to arbitral proceedings commenced on or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 and to court proceedings arising out of or in relation to such arbitral proceedings.”.

9 2015. Admittedly, these proceedings were initiated before the commencement of 2015 Act. 4. Per contra, Sri Ameet Kumar Deshpande, learned counsel appearing for the respondent No.1 would submit that the application made by the petitioners herein before the Commercial Court was beyond the prescribed period of limitation and therefore the application itself could not have been entertained. However, it is submitted that the Commercial Court has made an observation that the issue of limitation will be determined along with the main matter. 5. On hearing the learned counsels, this Court is of the opinion that the Commercial Court was required to determine the question of limitation since it goes to the root of the matter regarding entertainment of the application itself. Therefore while remitting the matter back to the Commercial Court, it is required to direct that the execution proceedings initiated by the

10 respondents will have to be kept on hold till the Commercial Court determines the issues. Therefore, in order to enable the same, the execution petitions filed by the respondents shall be kept on hold for a period of four weeks in order to enable the Commercial Court to determine the question of limitation and thereafter proceed in accordance with law. With these observations, the petitions are disposed of.

Sd/- JUDGE

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