STATE OF MAHARASHTRA versus M/S. S.D. SHINDE AND CO.

Citation: [2003] SUPP. 3 S.C.R. 891 · Decided: 17-09-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

ST A TE OF MAHARASHTRA 
A 
V. 
MIS. S.D. SHINDE AND CO. 
SEPTEMBER 17, 2003 
(V.N. KHARE, CJ. AND S.B. SINHA, J.] 
B 
Arbitration Act,1940: 
Ss.18 and 20-Arbitration-Award given by arbitrator-Subsequently 
arbitrator filed an interim award for being made rule of the court-Interim 
order passed directing the Government to pay final bill to contractor- C 
Application by contractor purported to be uls.18-Ultimately suit dismissed 
and matter remitted back for fresh arbitration-In revision High Court 
directing the Government to pay to the contractor in accordance with the 
final bill-Held, High Court had no jurisdiction to pass the impugned 
order-The award had already been set aside by Civil Judge-No award D 
was in existence for execution-In any event in the name of interim order 
High Court could not have passed impugned order which would amount 
not only setting aside the order of Civil Judge but the decree also would 
stand executed-Such an order at an interim stage is not contemplated in 
law-Interim Order-Scope of 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 640 of 
1998. 
From the Judgment and Order dated 18.9.97 of the Bombay High 
E 
Court in C.R. Application No. 143 of 1997. 
p 
Mukesh K. Giri for the Appellant. 
S.K. Pasi and M.P. Singh for the Respondent. 
The following Order of the Court was delivered : 
The appellant and the respondent entered into an agreement under 
which the respondent undertook to construct certain project. The appellant 
herein from time to time issued work orders which the respondent alleges 
G 
to have completed. It appears that certain disputes arose between the 
appellant and the respondent as a result of which the respondent filed a H 
891 
892 
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. 
A petition under Section 20 of the Arbitration Act, I 940 (hereinafter referred 
to as "the Act") for appointment of an arbitrator. An arbitrator was 
appointed who gave an award. Subsequently, the arbitrator filed an interim 
award before the Civil Judge (Sr. Division) for being made rule of the 
court. After the notices were issued, the respondent filed an application for 
B making the said interim award a rule of court. An interim order was passed 
whereby the appellant was directed to pay the final bill to the respondent 
in relation whereof an application was filed by the respondent purported 
to be under Section 18 of the Act. Civil Suit No. 44/1995 was finally 
decided, whereby the award dated 21.1.1995 was set aside and the matter 
was remitted back for fresh arbitration and the sole arbitrator was directed 
C to reconsider the matter. The said directions are as under : 
D 
E 
F 
"The plaintiff petitioner, has already observed, wants a 
decree in the terms of modified A ward in the sense that whatever 
has been awarded to him under doubt retained in addition to 
awarding his claim to loss of profit on illegal termination of the 
contract and has claim to waiver of interest while the Defendant, 
Respondent wants it to be either set aside or remitted. The 
discussion in the foregoing and my various findings already 
recorded lead me to conclude that the award, at this state, does 
not deserve either confirmation or modification at my hands. On 
the other hand, it also does not deserve setting aside once for all. 
On the other hand, it deserves to be set aside for remittance back 
to the Arbitrator for going into the entire Arbitration proceedings 
afresh, on the basis of points of dispute already referred to him 
by the learned Civil Judge who appointed him under Order dated 
25th May, 1993, giving full opportunity to both the parties to lead 
oral and documentary evidence, if they so desire, and to ensure 
that all the material documents are brought before him under his 
instructions. Hence, issue No. 10 is answered accordingly." 
G 
The respondent herein filed a revision application before the 
Aurangabad Bench of the Bombay High Court. By reason of the impugned 
order, a learned Judge relying on and on the basis of preparation of the 
final bill by the Executive Engineer directed the appellant herein to pay 
a sum of Rs. 26,62,856 together with interest accrued thereon on bank 
guarantee being furnished by the respondent herein. The material portion 
H of the order of the High Court is as under : 
STATE v. S.D. SHINDE 
893 
" ... .It appears that at the instance of the application of the A 
respondents the learned trial Judge has set aside the interim award 
and remanded the matte

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