No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8307 OF 2019
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 36095 OF 2016)
STATE OF GUJARAT THROUGH
CHIEF SECRETARY & ANR. …APPELLANT(S)
Versus
AMBER BUILDERS …RESPONDENT(S)
With
CIVIL APPEAL NO. 8308 OF 2019
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 36096 OF 2016)
J U D G M E N T
Deepak Gupta, J.
The main question which arises for decision in these
appeals is whether the Gujarat Public Works Contract Disputes
Arbitration Tribunal (hereinafter referred to as ‘the Tribunal’)
constituted under Section 3 of the Gujarat Public Works
Contracts Disputes Arbitration Tribunal Act, 1992 (hereinafter
2
referred to as ‘the Gujarat Act’) has jurisdiction to make interim
orders in terms of Section 17 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as ‘the A&C Act’).
2.At the outset, it may be noted that the Gujarat Act was
enacted with a view to compulsorily refer all disputes arising out
of “works contract” entered into by the State Government or the
Public Sector Undertakings with any other person for those
works defined as “works contract” in terms of Section 2 (k) of the
Gujarat Act. As far as this case is concerned, it is not disputed
that the contract entered into between the appellant State and
the respondentcontractor was a “works contract”. The contract
order pertaining to the parties dated 31.07.2007 contained an
arbitration clause, relevant portion of which reads as follows:
“Clause : 30(1) Disputes to be referred to Tribunal : The
dispute relating to this contract, so far as they relate to of
the following matters, whether such disputes arise during
the progress of the work of or after the completin or
abandoned thereof, shall be referred to the Arbitration
Tribunal, Gujarat State…”
3.It is not disputed that the Gujarat Act is applicable in the
present cases. We are mainly concerned with Clause 43.A of the
contract entered into between the parties, which reads as
follows:
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“43.A Any sum of money due and payable to the
Contractor (including the security deposit returnable to
the contractor) executing any Government work or work of
any District Panchayat wholly financed as grantinaid
under this contract shall be appropriate by any District
Panchayat/Government and shall be set off against any
claim of the Government/District Panchayat of Gujarat
state by the District Panchayat of Gujarat
State/Government for the payment of a sum of money
arising out or under any other contract made by the
contractor with the Government/District Panchayat of
Gujarat State for the work wholly financed as grantinaid
by Government of Gujarat State. When no such amount
for purpose of the recovery from the contractor against any
claim of the Government/District Panchayat of Gujarat
state is available, such a recovery shall be made from the
contractor as arrears of land revenue.”
4.In this judgment, we are only referring to the facts of Civil
Appeal No.8307 of 2019 @ SLP(C) No.36095 of 2016. The
respondentcontractor was awarded a contract for strengthening
a section of National Highway under work order dated
31.07.2007. According to the contractor, he completed the work
on 30.04.2008 and final bill was paid to the contractor. The road
was damaged and, according to the contractor, this had occurred
due to heavy rains. The State called upon the contractor to
repair the damaged portion and, according to the contractor, this
repair was completed after the rains stopped.
5.The case of the contractor is that in terms of the contract,
the contractor was only liable to remove defects for a period of 3
years which period ended on 30.04.2011. On 10.09.2012, the
4
contractor wrote a letter to the State to release the security
amount. This amount was accordingly released vide letter dated
10.09.2012. The State issued letter dated 11.11.2014 calling
upon the contractor to pay a sum of Rs.1,09,00,092/. This
claim was based on the premise that the contractor had not
carried out the road repair work in accordance with the contract.
The appellant State threatened to withhold the payments from
the security deposits and bills of other pending works. This
notice was challenged by filing a writ petition in the High Court of
Gujarat on the ground that the State was not competent to
withhold the amount payable to the contractor under other
contracts or recover the amount from payments made under
other contracts until the liability of the contractor was
determined and quantified by a Court or forum of competent
jurisdiction. The stand of the State was that since the work of
the contractor was defective, the State had got the work done
from another person at the risk of the contractor. In case, the
contractor has any dispute, he can approach the Court and
reliance was placed on Clause 43.A of the agreement quoted
above.
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6.The High Court relied upon the judgment of this Court in
State of Karnataka vs. Shree Rameshwara Rice Mills,
Thirthahalli
1
and the consistent view of the Gujarat High Court
in various judgments referred to in the impugned judgment and
held that without quantification or crystallization of the amount
sought to be recovered, the employer or the contractor cannot
unilaterally recover the said amounts from the ongoing contract
work of the same contractor in connection with another contract.
It was further directed that the State could not recover the
amounts sought to be recovered from the payments due and
payable to the contractor in other contracts. Liberty was,
however, given to the State to seek recovery through other means
as may be permissible under law. Accordingly vide judgment
dated 18.02.2016 the petition was allowed and the
communication dated 11.11.2014 was set aside.
7.This judgment has been challenged before us. Shri
Preetesh Kapoor, learned senior counsel appearing for the State
of Gujarat contends that the High Court has no jurisdiction to
pass such an order. He submits that, in fact, the remedy, if any,
of the respondent contractor was to approach the State Tribunal
1 (1987) 2 SCC 160
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as constituted under the Gujarat Act and the writ court could not
have granted such relief. On the other hand, Shri. K. G.
Sukhwani, learned counsel appearing for the respondent submits
that the Tribunal constituted under the Gujarat Act has no
jurisdiction to grant such relief and he has placed reliance on an
order of the State Tribunal dated 24.11.2005 wherein the
Tribunal held that it can only exercise jurisdiction, powers and
authority conferred on it by or under the Gujarat Act of which it
is a creation. It was further held that if the Gujarat Act does not
empower the Tribunal to grant injunction, and it cannot take
recourse to the Code of Civil Procedure, 1908 for grant of interim
relief. It also held that an order of interim injunction, as prayed
for like in the present case, does not fall within the ambit of
‘interim award’. The Tribunal held that there is no power to
grant such injunction.
8.It appears to us that since then, in Gujarat, challenges to all
communications/orders, whereby the State taking recourse to
the provision of the contract akin to Clause 43.A seeks to recover
amounts by setting it off against the claims of contractor in other
contracts, are dealt with by the High Court.
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9.We have extracted the main issue in the opening portion of
the Judgment. Section 2(a) of the Gujarat Act defines an
‘Arbitration Act’ to mean Arbitration Act, 1940. It is not disputed
by the parties that this will now read to mean the A&C Act.
10.We may also refer to certain provisions of the A&C Act.
Section 2(e)(i) of the A&C Act defines ‘Court’ in the context of
disputes other than the international commercial arbitration as
follows:
“(i) in the case of an arbitration other than
international commercial arbitration, the principal
Civil Court of original jurisdiction in a district, and
includes the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction to
decide the questions forming the subjectmatter of
the arbitration if the same had been the subject
matter of a suit, but does not include any Civil Court
of a grade inferior to such principal Civil Court, or
any Court of Small Causes;”
11.We may also refer to Section 2(2) & 2(4) of the A&C Act
which read as follows:
“(2) This Part shall apply where the place of
arbitration is in India:
Provided that subject to an agreement to the
contrary, the provisions of sections 9, 27 and clause
(a) of subsection (1) and subsection (3) of section
37 shall also apply to international commercial
arbitration, even if the place of arbitration is outside
India, and an arbitral award made or to be made in
8
such place is enforceable and recognised under the
provisions of Part II of this Act.”
xxx xxx xxx
“(4) This Part except subsection (1) of section 40,
sections 41 and 43 shall apply to every arbitration
under any other enactment for the time being in
force, as if the arbitration were pursuant to an
arbitration agreement and as if that other enactment
were an arbitration agreement, except in so far as
the provisions of this Part are inconsistent with that
other enactment or with any rules made
thereunder.”
12.Section 9 of the A&C Act empowers the Court to grant
interim measures. However, Section 9(3) clearly provides that
once an arbitral tribunal is constituted, the Court shall not
entertain an application under Section 9(1) unless the Court
comes to the conclusion that such circumstances exist which
would make the remedy under Section 17 not efficacious.
13.Section 17 of the A&C Act provides for interim measures to
be granted by the arbitral tribunal. It reads as follows:
“17. Interim measures ordered by arbitral
tribunal.—(1) A party may, during the arbitral
proceedings or at any time after the making of the
arbitral award but before it is enforced in
accordance with section 36, apply to the arbitral
tribunal—
(i) for the appointment of a guardian for a minor or
person of unsound mind for the purposes of
arbitral proceedings; or
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(ii) for an interim measure of protection in respect of
any of the following matters, namely:—
(a) the preservation, interim custody or sale of
any goods which are the subjectmatter of the
arbitration agreement;
(b) securing the amount in dispute in the
arbitration;
(c) the detention, preservation or inspection of
any property or thing which is the subjectmatter
of the dispute in arbitration, or as to which any
question may arise therein and authorising for
any of the aforesaid purposes any person to
enter upon any land or building in the
possession of any party, or authorising any
samples to be taken, or any observation to be
made, or experiment to be tried, which may be
necessary or expedient for the purpose of
obtaining full information or evidence;
(d) interim injunction or the appointment of a
receiver;
(e) such other interim measure of protection as
may appear to the arbitral tribunal to be just
and convenient,
and the arbitral tribunal shall have the same
power for making orders, as the court has for the
purpose of, and in relation to, any proceedings
before it.
(2) Subject to any orders passed in an appeal under
section 37, any order issued by the arbitral tribunal
under this section shall be deemed to be an order of
the Court for all purposes and shall be enforceable
under the Code of Civil Procedure, 1908 (5 of 1908),
in the same manner as if it were an order of the
Court.”
14.We may also refer to Section 31(6) of the A&C Act which
reads as follows:
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“31. Form and contents of arbitral award.
xxx xxx xxx
(6) The arbitral tribunal may, at any time during the
arbitral proceedings, make an interim arbitral award
on any matter with respect to which it may make a
final arbitral award.”
15.Part I of the A&C Act i.e. from Section 2 to Section 43 deals
with Arbitration and Section 2(2) clearly states that the said Part
would apply to all Arbitrations which take place in India. Section
2(4) makes it absolutely clear that other than Section 40(1), 41
and 43, Part I of the A&C Act shall apply to all arbitrations even
if they are carried out under any other enactment as if the
arbitrations were pursuant to an arbitration agreement except
insofar as the provisions of Part I are inconsistent with the other
enactment or any rules made thereunder. A plain reading would
show that the provisions of Part I of the A&C Act would apply to
all arbitrations where the place of arbitration is within India.
Even statutory arbitrations under other Acts would be governed
by Part I. The only exception is that if there is any departure
from Part I in the special enactment then the special enactment
will prevail and the A&C Act will give way to the special
enactment.
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16.It is in this context that we have to examine the Gujarat Act.
We have already referred to certain provision of the Gujarat Act.
Reference and procedure of the Tribunal is governed by Chapter
3 of the Gujarat Act. Section 8 provides that where any dispute
within the meaning of the said Act, arises between the parties,
the said dispute shall be referred to arbitration under the said
Act whether the agreement in question contained an arbitration
clause or not. Basically, the intention of the Stage Legislature
was that all disputes relating to works contract between the State
Government and the persons executing the works defined as
works contract would be compulsorily referred to the Arbitral
Tribunal constituted under Section 3 of the Gujarat Act. Section
8(3) clearly provides that where the Tribunal admits a reference
under subsection (2) it will make an award or an interim award
giving its reasons thereof. This Section recognizes the power of
the Tribunal to make interim awards. However, as pointed
above, the Tribunal took a view that an interim award could not
be in the nature of an injunction.
17.The practice and procedure of the Tribunal is governed by
Section 9 of the Act. Section 12 of the Act vests revisional powers
12
in the High Court of Gujarat where an award or any interim
award can be challenged on the grounds set out therein. The
High Court also has suo motu powers in this regard. Section 13
which is relevant for our purpose reads as follows:
“13. Bar of jurisdiction of Courts. (1) Save as
otherwise provided by section 12, no Civil Court
shall have jurisdiction to deal with or decide any
question which the Tribunal is empowered to deal
with and decide by or under this Act and no
injunction shall be granted by any Civil Court in
respect of any action taken or to be taken in
pursuance of any power by or under this Act.
(2) No award or interim award or order made or
proceedings taken under this Act by the Tribunal
shall be called in question in any Civil Court.”
Section 13 specifically bars the jurisdiction of the Civil Courts.
This clearly means that powers vested in a Civil Court under the
A&C Act, such as the powers to grant interim relief in terms of
Section 9 of the A&C Act and the powers for setting aside an
award under Section 34 of the Act cannot be exercised by Civil
Courts insofar as the awards made under the Gujarat Act are
concerned. As far as Gujarat Act is concerned, the power to set
aside/modify an award is vested in the High Court under Section
12. Section 21 of the Gujarat Act reads as follows:
“21. Arbitration Act to cease to apply. The
provisions of the Arbitration Act, shall in so far as
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they are inconsistent with the provisions of this Act,
cease to apply to any dispute arising from a works
contract and all arbitration proceedings in relation
to such dispute before an arbitrator, umpire, court
or authority shall stand transferred to the Tribunal.”
18.We are clearly of the view that the appropriate remedy for
the contractor was to approach the arbitral tribunal constituted
under the Gujarat Act since that would have jurisdiction to
decide whether the notice issued by the Government was a legal
notice and whether the Government was, in fact, entitled to
recover any amount from the contractor. It would also be within
the jurisdiction of the Tribunal to decide whether the contractor
has made out a prima facie case for grant of interim relief. We
are purposely not going into the merits of the case because once
we hold that the Tribunal has the jurisdiction to entertain and
adjudicate upon the dispute it would not be proper for us to
make any comments on the merits.
19.Shri Sukhwani, learned counsel appearing for the
respondents has placed reliance on a judgment of this Court in
Gangotri Enterprises Limited vs. Union of India and
Others
2
to submit that till the demand of the Government is
crystallised or adjudicated upon, the Government cannot
2 (2016) 11 SCC 720
14
withhold the money of the contractor. Since this case been
specifically relied upon we are duty bound to go in the
correctness of the view laid down in Gangotri Enterprises
(supra). The judgment in Gangotri Enterprises (supra) is
primarily based on the judgment of a two Judges’ Bench of this
Court in Union of India vs. Raman Iron Foundry
3
In this
case, this Court held that the Government had no right to
appropriate the amount claimed without getting it first
adjudicated. The relevant portion of the judgment reads as
follows:
“6… But here the order of interim injunction made by the
learned Judge does not, expressly or by necessary
implication, carry any direction to the appellant to pay
the amounts due to the respondent under other
contracts. It is not only in form but also in substance a
negative injunction. It has no positive content. What it
does is merely to injunct the appellant from recovering,
suo moto, the damages claimed by it from out of other
amounts due to the respondent. It does not direct that
the appellant shall pay such amounts to the respondent.
The appellant can still refuse to pay such amounts if it
thinks it has a valid defence and if the appellant does so,
the only remedy open to the respondent would be to take
measures in an appropriate forum for recovery of such
amounts where it would be decided whether the
appellant is liable to pay such amounts to the respondent
or not. No breach of the order of interim injunction as
such would be involved in nonpayment of such amounts
by the appellant to the respondent. The only thing which
the appellant is interdicted from doing is to make
recovery of its claim for damages by appropriating such
amounts in satisfaction of the claim. That is clearly
3 (1974) 2 SCC 231
15
within the power of the Court under Section 41 (b)
because the claim for damages forms the subject matter
of the arbitration proceedings and the Court can always
say that until such claim is adjudicated upon, the
appellant shall be restrained from recovering it by
appropriating other amounts due to the respondent. The
order of interim injunction made by the learned Judge
cannot, therefore, be said to be outside the scope of his
power under Section 41 (b) read with the Second
Schedule.
xxx xxx xxx
“11…We must, therefore, hold that the appellant had no
right or authority under Clause 18 to appropriate the
amounts of other pending bills of the respondent in or
towards satisfaction of its claim for damages against the
respondent and the learned Judge was justified in
issuing an interim injunction restraining the appellant
from doing so.”
The judgment in Raman Iron Foundry (supra), was specifically
overruled on the issue in hand by a three Judge Bench of this
Court in the case of H.M. Kamaluddin Ansari & Co. vs. Union
of India
4
. In this case there was a general condition which
entitled the Government to recover the damages claimed by
appropriating any sum which may become due to the contractor
under other pending bills. In this case, this Court disagreed with
the findings in the Raman Iron Foundry (supra) and held as
follows:
“21…With profound respect we find that the
aforesaid observation is incongruous with the
proposition of law laid down by this Court just
4 (1983) 4 SCC 417
16
before this observation. We find it difficult to agree
with the observation of the Court that the impugned
order in form and substance being the negative the
respondent could refuse to pay such amounts if it
thinks it has a valid defence, and if it chooses to do
so there would be no breach of the injunction order.
22.It is true that the order of injunction in that case
was in negative form. But if an order injuncted a
party from withholding the amount due to the other
side under pending bills in other contracts, the order
necessarily means that the amount must be paid. If
the amount is withheld there will be a defiance of
the injunction order and that party could be hauled
up for infringing the injunction order. It will be a
contradiction in terms to say that a party is
injuncted from withholding the amount and yet it
can withhold the amount as of right. In any case if
the injunction order is one which a party was not
bound to comply with, the court would be loath and
reluctant to pass such an ineffective injunction
order. The court never passes an order for the fun of
passing it. It is passed only for the purpose of being
carried out. Once this Court came to the conclusion
that the court has power under Section 41 (b) read
with Second Schedule to issue interim injunction
but such interim injunction can only be for the
purpose of and in relation to arbitration proceedings
and further that the question whether any amounts
were payable by the appellant to the respondent
under other contracts, was not the subject matter of
the arbitration proceedings and, therefore, the court
obviously could not make any interim order which,
though ostensibly in form an order of interim
injunction, in substance amount to a direction to the
appellant to pay the amounts due to the respondent
under other contracts, and such an order would
clearly be not for the purpose of and in relation to
the arbitration proceedings; the subsequent
observation of the Court that the order of injunction
being negative in form and substance, there was no
direction to the respondent to pay the amount due to
the appellant under pending bills of other contracts,
is manifestly inconsistent with the proposition of law
laid down by this Court in the same case.
xxx xxx xxx
17
31. We are clearly of the view that an injunction
order restraining the respondents from withholding
the amount due under other pending bills to the
contractor virtually amounts to a direction to pay
the amount to the contractorappellant. Such an
order was clearly beyond the purview of clause (b)
of Section 41 of the Arbitration Act. The Union of
India has no objection to the grant of an injunction
restraining it from recovering or appropriating the
amount lying with it in respect of other claims of the
contractor towards its claim for damages. But
certainly Clause 18 of the standard contract confers
ample power upon the Union of India to withhold the
amount and no injunction order could be passed
restraining the Union of India from withholding the
amount.”
20.In our opinion, the judgment rendered in Gangotri
Enterprises Limited (supra) is per incuriam because it relies
upon Raman Iron Foundry (supra) which has been specifically
overruled by three Judge Bench in the case of H.M. Kamaluddin
Ansari (supra).
21.On a conjoint reading and a careful analysis of the Acts
together, we are of the view that insofar as the powers vested in
the Arbitral Tribunal in terms of the Section 17 of the A&C Act
are concerned, such powers can be exercised by the Tribunal
constituted under the Gujarat Act because there is no
inconsistency in these two Acts as far as the grant of interim
relief is concerned. This power is already vested in the tribunal
18
under the Gujarat Act and Section 17 of the A&C Act
compliments these powers and therefore it cannot be said that
the provisions of Section 17 of the A&C Act are inconsistent with
the Gujarat Act.
22.In view of the above discussion, both the appeals filed by
the State of Gujarat are allowed, and the judgments of the High
Court of Gujarat are set aside. However, liberty is given to the
contractor(s) to approach the Gujarat Public Works Contract
Disputes Arbitration Tribunal and if the Tribunal is approached
within 2 months from today, the tribunal shall not dismiss the
claim on the issue of limitation. It shall decide the same on
merits. Pending application(s), if any, shall stand(s) disposed of.
…………………………….J.
(Deepak Gupta)
……………………………..J.
(Aniruddha Bose)
New Delhi
January 8, 2020
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