IN THE COURT OF SPECIAL JUDGE FOR TRIAL & DISPOSAL OF COMMERCIAL DISPUTES: VISAKHAPATNAM

Present: Sri P. Kesavacharyulu Special Judge for Trial & Disposal of Commercial Disputes, Visakhapatnam Friday, this the 28th day of June, 2024

EA GR. No. 2044, dated 30. 11. 2023 in CEP No. 08/2023 in AC No. 21C/IFC/2016/11086

Between:

The Chairperson, Visakhapatnam Port Authority, Visakhapatnam, represented by Sri Botcha Gajendra Ganapathi, Hindu, aged 59 years, working as Superintendent Engineer, Visakhapatnam Port Authority, Visakhapatnam . . . Petitioner/Judgment Debtor

AND:

M/s. Jupiter Contech Private Ltd. , (Formerly known as Konark Foundations Private Ltd. ) Door No. 1-83-14/2, SecoND Floor, Sector-3, MVP Double Road, MVP Colony, Visakhapatnam . . . Respondent/Decree Holder This petition had come up on 01. 05. 2024 for hearing before me in the presence of Sri S. NageSh. Kumar, Advocate for Petitioner/Judgment Debtor aND of Sri G. Ramachadra Rao, Sri Y. Markendeyulu, Advocates for Respondent/Decree Holder aND this matter having heard aND stood over for consideration till this day, this Court made the following: EA GR. No. 2044, dated 30. 11. 2023 in CEP No. 08/2023 in AC No. 21C/IFC/2016/11086 Commercial Court, Visakhapatnam, dt. 28. 06. 2024

O R D E R

Sole J. Dr in the arbitration case filed this application under Section 47 read with Section 151 of the Code of Civil Procedure. It was returned with office objection as to its maintainability. It was re-presented.

2. Learned counsel for petitioner/J. Dr cited Ran Singh v. The Gandhar Agricultural Co-operative Service Society¹ aND Union of India v. Jagat Ram Trehan² aND submitted that the application is maintainable.
3. In the petition (neat copy), the following grounds have been raised for determination of the validity of the Award passed by the Facilitation Council under the Micro, Small aND Medium Enterprises Development Act, 2006:

1. 4. Hr issued a typed letter, of its free will, dated 08. 03. 2016 & 21. 03. 2016, on its own letterhead declaring aND confirming that it had no claims against the subject work aND all its dues were settled with full satisfaction. But, in the claim statement before the Council, D. Hr pleaded that the consent letter dated 21. 03. 2016 was not addressed by him aND the signature thereon did not belong to the Director of the D. Hr company. Therefore, J. Dr filed an application under Section 45 of the Indian Evidence Act before ¹ AIR 1976 P&H 94 ² AIR 1996 Del 191 the Council for comparison by a handwriting expert. The said application was not disposed of by the Council. The Council came to the conclusion that the letter was obtained under coercion aND as a pre-condition to release the payment. D. Hr did not raise any protest for the acceptance of the amount towards satisfaction. Thus, D. Hr obtained the Award by mis-representation aND fraud. Fraud vitiates everything, aND is required to be decided by this court in the present application; 2) under the MSMED Act, award shall be passed within 90 days from the date of reference. But, the Council without consent for extension of time by any of the parties exceeded the time limit aND passed the Award. Hence, the question of enforcement of the Award does not arise.

4. In Hindustan Zinc Ltd. v. National Research Development Corporation³, J. Dr preferred an objection under Section 47 CPC contending that the arbitrator committed a manifest illegality while rejecting its claim of royalty aND allowing refuND to D. Hr aND allowing the counter-claim by D. Hr though barred by limitation. After discussing a catena of decisions, the Hon'ble High Court of Delhi heLd. that such objections clearly fall beyoND the contours aND scope of the execution. The objection was rejected with liberty to J. Dr to raise those objections in appropriate proceedings. ³ 2023 SCC OnLine Del 330

5. In State of Tripura v. Ashes Deb⁴, J. Dr filed an application under Section 47 CPC. The executing court discarded the objection mainly on the grouND that the award can be challenged only on the grounds prescribed under Section 34 of the Arbitration Act. It was upheLd. by the Hon'ble High Court of Tripura.
6. From the above, it is absolutely clear that the grounds taken in the present application are those which ought to be taken in an application under Section 34 of the Arbitration aND Conciliation Act, 1996 aND not by way of an application under Section 47 CPC.
7. The two decisions cited by the learned counsel for J. Dr are of the years 1975 aND 1995 under the repealed Arbitration Act 1940. There is a sea change in the 1940 Act aND the 1996 Act as to the procedure aND grounds for challenging an arbitral award. Therefore, both the decisions are of no assistance.
8. 10. Dr stated in the application that J. Dr filed an application under Section 34 of the Act before the court of Principal District Judge, Guntur aND it ⁴ 2022 SCC OnLine Tri 760 is pending for consideration. Thus, J. Dr is trying to prosecute two parallel proceedings simultaneously.

9. The object of the speedy disposal of commercial cases wouLd. be frustrated if the application is registered to be only rejected finally. Hence, the office objection as to the maintainability is upheLd. holding that the application cannot be registered being not maintainable. Dictated to the Stenographer grade-III, transcribed by her, corrected aND pronounced by me in the open court this the 28th day of June, 2024. Sd/- xx, P. Kesavacharyulu, Special Judge for Trial & Disposal of Commercial Disputes, Visakhapatnam

APPENDIX OF EVIDENCE

--NIL-- Sd/- xx, P. Kesavacharyulu, Special Judge for Trial & Disposal of Commercial Disputes, Visakhapatnam // TRUE COPY // Special Judge for Trial & Disposal of Commercial Disputes, Visakhapatnam

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References: Case Number - CEP/8/2023 | Case Type - CEP | CNR Number - APVS000077292023 | Complex Name - Pdj Court Visakhapatnam | Court Name - 14-sri. D.vijay GOUTAM-SPECIAL JUDGE FOR TRIAL AND DISPOSAL OF COMMERCIAL DISPUTES | Filing Date - 13-09-2023 | Judge Name - 14-Special Judge For Trial And Disposal Of Commercial Disputes | List Date - 2025-06-20 | Order Date - 2024-06-28 | Order Number - 1 | Petitioner Advocates - G. Ramachandra Rao | Petitioner Parties - M/S.Jupiter Contech Private Limited (Formerly Known As Konark Foundations Private Limited) Advocate - G. Ramachandra Rao | Respondent Parties - Visakhapatnam Port Trust | Status - Cep