IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. CC 13366 OF 2007

IN THE MATTER OF:

M/s Shiv Shankar Rice Mills ...Petitioner

Versus

Punjab State Warehousing Corporation

& Anr. …Respondents

ADDITIONAL AFFIDAVIT FILED BY THE PETITIONER

PURSUANT TO THE ORDER PASSED BY THIS HON’BLE
COURT ON 09.01.2008

I Subash Chander, S/o Sh. Mangat Rai son of Shri Ram Lal, aged

about 43 years, R/o Badhni Kalan, Distt. Moga Punjab, do hereby

solemnly affirm and state as under:-:-

1. That I am the Partner of the Petitioner firm herein and

therefore, I am fully aware of the facts and circumstances of the

present case and am also therefore, fully competent to swear this

Affidavit. I further declare that no similar affidavit has been filed.

2. That the above named Petitioner have preferred the present

Special Leave Petition challenging the impugned judgment and

Order dated 08.08.2007, passed by the Hon’ble High Court for the

States of Punjab and Haryana at Chandigarh in Civil Revision

Petition No.2752 of 2007, a Petition filed by the Respondent No.1,

Punjab State Warehousing Corporation, for setting aside the order

dated 22.02.2007, passed by the Additional District Judge, Moga,

in Arbitration Case No.22 of 2004, wherein the Learned Additional

District Judge, Moga, declined to entertain the Application moved

by the Respondent No.1 under Section 34 of the Arbitration and

Conciliation Act, 1996 for setting aside the Arbitral Award dated

18.09.2004 passed by the Learned Sole Arbitrator, Justice V.P.

Anand, on the ground that the fee and costs assessed by the

Arbitrator under Section 31 of the Act of 1996 have not been paid

and therefore, the Arbitrator has a lien on the Award and hence,

unless such costs of the Arbitration proceedings are made, the

Arbitral Award dated 18.09.2004 cannot be challenged under

Section 34 of the Act of 1996.

3. It is respectfully submitted that the Hon’ble High Court,

without appreciating the submissions made by the Petitioner herein

that even if the Hon’ble Court comes to the conclusion that against

the order passed by the ADJ, Moga, in Petition under Section 34 of

the Arbitration and Conciliation Act, 1996, an Appeal should have

been filed by the Respondent Corporation instead of a Revision

Petition, vide the Impugned Order dated 8.8.2007, the Single

Judge of the Hon’ble High Court converted the Revision Petition

filed by the Respondent Corporation into an Appeal with the

observation that in view of the law laid down by the Hon’ble

Supreme Court in M/s Essar Construction Vs. N.P. Rama Krishna

Reddy, reported in 2000 (3) RCR (Civil) 281, it is open for this

Court to convert the Revision Petitions into Appeal, in the interest

of justice, as an Appeal against the order passed by the Additional

District Judge, Moga, in an Application under Section 34 of the Act,

also lies before this Court. The Hon’ble High Court therefore
allowed the Revision Petition and converted the same into Appeal

and was pleased to set aside the order dated 22.02.2007 passed

by the Additional District Judge, Moga and remanded the matter

back to the Additional District Judge, for deciding the objections

filed by the Respondent Corporation under Section 34 of the

Arbitration and Conciliation Act., 1996 on merits after providing full

opportunity to the parties in accordance with law. Hence, the

present Special Leave Petition is being filed.

4. It is respectfully submitted that during the pendency of the

aforesaid Revision Petition, which was later on converted into an

Appeal, the Respondent No.1 herein moved an Application under

Section 39 (2) of the Act, in the Court of the Learned Additional

District Judge, Moga for permission to deposit in the Court, an

amount of Rs.44,100/- on account of fee and cost of Learned

Arbitrator and for passing an order directing the Learned Arbitrator

to give no objection for filing objections to the award made by him.

5. It is further respectfully submitted that the said Application

under Section 39 (2) of the Act, preferred by the Respondent No.1

herein is still pending in the Court of Mrs. Amarjat Bhatti, Additional

District Judge, Moga. The last date of hearing in the aforesaid

Application was 15.12.2007. However, the Respondent No.1 herein

is yet to deposit the amount of fee and cost of its share i.e.,

Rs.44,100/-. At this juncture it is significant to mention here that in

Para 7 of the impugned Order dated 8th August 2007, the Hon’ble

Single Judge of the High Court has recorded as follows;

 “The learned counsel further submits that now when the
petitioner has deposited the amount of fee and cost of its
share, i.e, Rs.44,100/- before the competent court with an
application under Section 39 (2) of the Act of 1996 for
determining the fee and cost payable to the Arbitrator and for
payment of the same from the amount deposited by it to the
Arbitrator, the impugned order is liable to be set aside with a
direction tot eh Additional District Judge, Moga to decide the
objections filed by the petitioner under Section 34 of the Act
of 1996 on merits. Counsel submits that since respondent
No.1 has filed the execution application under Section 36 of
the Act of 1996 after getting no objection certificate from the
Arbitrator on making the payment of its share, the right of the
petitioner will be seriously prejudiced if his objections under
Section 34 of the Act of 1996 are not decided on merits. He
further submitted that as far as fee and costs of the Arbitrator
are concerned, his interest has been protected by depositing
the said amount in the court under Section 39(2) of the Act
and the Court may after adjudicating his entitlement, can pay
the same to the Arbitrator from the said amount. Therefore,
the impugned order is liable to be set aside with a direction
to the Additional District Judge, Moga to decide the
objections of the Petitioner on merits.”

6. It is pertinent to mention here that when the present Special

Leave Petition was listed for admission hearing before this Hon’ble

Court on 09.01.2008, keeping in view the question involved in this

case, this Hon’ble Court has granted one week time to the

Petitioner herein to file a supplementary Affidavit with respect of the

position of the Application under Section 39 (2) of the Act which is

still pending in the Court of the Additional District Judge, Moga.

7. That in compliance to the aforesaid order dated 29.11.2006

passed by this Hon’ble Court, on 2.2.2007, the General Officer

Commanding, Amritsar, passed an Order in term of Section 7b (i)

of the Works of Defence Act., 1903 and on 7.2.2007, the same has

been filed on behalf of the Union of India before this Hon’ble Court

by way of an Affidavit.
In the facts and circumstances of the present case narrated
hereinabove, the Special Leave Petition filed by the Petitioner be
dismissed with costs.

DEPONENT

VERIFICATION:

Verified at New Delhi on this the 19th day of February, 2007 that the
contents of my above Counter Affidavit are true to my knowledge
and belief. Nothing false has been stated therein or material
concealed therefrom.

DEPONENT
 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (Civil) NO. 1522 OF 2006

IN THE MATTER OF:

Municipal Corporation, Amritsar .... PETITIONER

VERSUS

Fruit and Vegetable Merchants

Union (Regd.) and Ors. …. CONTESTING/
RESPONDENTS

INDEX

S. PARTICULARS PAGE
NO. NO.

1. Additional Affidavit on behalf of the Fruit &

Vegetables Merchants Union, the contesting
Respondent No.1 in response to the order
dated 02.02.2007 passed by the General
Officer Commanding, District Amritsar,
Punjab in terms of Section 7b (i) of the Work
of Defence Act 1903.

FILED BY:

(R. NEDUMARAN)
ADVOCATE FOR THE RESPONDENT No.1
February 20th, 2007