Supreme Court of India
KANPUR JAL SANSTHAN & ANOTHERversusM/S. BAPU CONSTRUCTION
- Citation
- 2014 INSC 900
- Decided
- 3 January 2014
- Disposal
- Disposed off
- Bench
- ANIL R DAVE
Holding
An arbitral award rejected under Section 34 is enforceable as a decree, the CPC’s Order XU Rule 5 applies to appeals under Section 37, and the statutory definition of "Government" does not include a Jal Sansthan, so security for the entire award must be furnished.
Summary
Kanpur Jal Sansthan appealed against a High Court order that, after rejecting its Section 34 objection to an arbitral award, directed it to deposit the entire award amount while allowing the claimant to withdraw half without security. The Supreme Court held that once a Section 34 objection is rejected, the award becomes enforceable as a decree and the underlying principles of the Code of Civil Procedure, including Order XU Rule 5, apply to appeals under Section 37. However, the term "Government" in Order XXVII Rules 8A and 88 is narrowly defined and does not cover a Jal Sansthan, so the requirement of security cannot be exempted. Consequently, the Court modified the High Court order, directing the appellant to furnish security for the whole award, and disposed of the appeal without costs.
Issues considered
- The applicability of Order XU Rule 5 of the CPC to an appeal under Section 37 of the Arbitration Act when the appellant is a statutory body (Kanpur Jal Sansthan).
- Whether the definition of "Government" in Order XXVII Rules 8A and 88 excludes a Jal Sansthan from the exemption from security requirements.
- Whether an arbitral award, after rejection of a Section 34 objection, is enforceable as a decree for purposes of the CPC.
Legislation cited
- Arbitration and Conciliation Act, 1996s. 19, s. 34, s. 35, s. 36, s. 37
- Code of Civil Procedure, 1908s. Order 41 Rule 5, s. Order XU Rule 5, s. Order XXVII Rule 88, s. Order XXVII Rule 8A
- Constitution of Indias. Article 12
Subjects
ArbitrationSection 34 objectionEnforcement of arbitral awardCode of Civil ProcedureOrder XU Rule 5Government definitionState agencySecurity depositAppeal under Section 37
Judgment
[2014] 1 S.C.R. 64
A KANPUR JAL SANSTHAN & ANOTHER
v.
M/S. BAPU CONSTRUCTION
(Civil Appeal No. 26 of 2014)
JANUARY 03, 2014.
B
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
ARBITRATION AND CONG/LIA T/ON ACT, 1996:
c s. 37 - Appeal against order rejecting objection uls 34 -
Applicability of Code of Civil Procedure - Held: Award has
the potentiality of enforcement - Therefore, when an appeal
is filed against rejection of objection preferred uls 34,
enforceability of award gains absolute ground - When it is
challenged in an appeal u/s 37, the underlying principle of
0
Code of Civil Procedure is applicable - Code of Civil
Procedure, 190B - 0. 41, r. 5.
CODE OF CIVIL PROCEDURE, 190B:
E 0. 27, r. BB and r BA rlw 0. 41, r. 5 - 'Government' -
Connotation of - Appeal by Jal Sansthan against order
rejecting objection u/s 34 of Arbitration and Conciliation Act
- High Court, on an application for stay, directing appellant
to deposit entire award amount - Plea that such a condition
F could not have been imposed on government organization
like appellant - Held: Legislature has defined the term
"Government" so as not to allow any room for interpretation
and speculation - If means either a Central Government or
a State Government and in certain cases public officer in the
G service of a State - Legislature has deliberately used a
restrictive definition and its scope cannot be expanded to
cover an agency or instrumentality of State by interpretative
process -It cannot be accepted that appellant Jal Sansthan
would come within the extended wing of the Government -
H 64
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 65
However, order of High Court modified and appellant directed A
to furnish security for entire award amount - Interpretation of
statutes - Restrictive construction - Constitution of India, 1950
-Art. 12.
The appellant-Jal Sansthan filed an appeal before the 8
High Court challenging the order of the District Judge
whereby he rejected its objection u/s 34 of the Arbitration
and Conciliation Act, 1996. The appellant filed an appeal
before the High Court. In the application for stay, the High
Court directed the Jal Sansthan to deposit the entire C
amount awarded by the arbitrator permitting the claimant-
respondent to withdraw half of the said amount without
furnishing security and remaining half on furnishing
security.
In the instant' appeal filed by the Jal Sansthan, it was D
contended for the appellant that the High Court fell into
error by directing deposit of entire award amount and
release of the same in favour of the claimant-respondent
applying the principle of 0. 41, r. 5 of the Code of Civil
Procedure, 1908, though the said principle was not E
applicable to the appellant which was an extended wing
of the State. It was submitted that the principle of 0. 41,
r. 5, CPC were to be read in harmony with 0. 27, r. SA,
CPC and on such harmonious reading it would be clear
that such a condition could not have been imposed on a F
governmental organization.
Disposing the appeal, the Court
HELD: 1.1. Sections 35 and 36 of the Arbitration and
Conciliation Act, 1996, make it clear that the award G
becomes enforceable when the time for making the
application to set aside the arbitral award has expired or
having been filed it has been refused and further that it
is enforceable in the same manner as if it were a decree
of the court. Thus, the award has the potentiality of H
66 SUPREME COURT REPORTS [2014] 1 S.C.R.
A enforcement. Therefore, when an appeal is filed against
the rejection of the objection preferred u/s 34 of the Act,
the enforceability of the award gains absolute ground. If
an application for stay has to be filed, it has to be filed
relating to stay of the operation of the award passed by
e the arbitrator. The court rejecting the objection only
refuses to entertain the objection and thereafter, the
award becomes enforceable as if it were a decree.
Whatever may be the status of the award under the Act,
in respect of any other statute, but when it is challenged
c in an appeal u/s 37 of the Act, the underlying principle of
the Code of Civil Procedure is applicable. [Para 9 and 14]
[72-D-G; 75-E]
Paramjeet Singh Patheja v. /CDS Ltd. 2006 (8) Suppl.
SCR 178 = (2006) 13 SCC 322 - referred to.
D
1.2. 0.41, r. 5, CPC is applicable to an appeal
preferred before the High Court, for there is no provision
in the Act prohibiting the appellate court not to take
recourse to the underlying principles of the Code of Civil
E Procedure as long as they are in consonance with the
spirit and principles engrafted under the Act. [Para 15]
[76-A-8]
Mis. Pandey & Co. Builders Pvt. Ltd. v. State of Bihar and
Another 2006 (8) Suppl. SCR 997 = AIR 2007 SC 465 -
F relied on.
Kayamuddin Shamsuddin Khan v. State Bank of India
(1998) 8 SCC 676; and Sihor Nagar Palika Bureau v.
Bhabhlubhai Virabhai & Co. (2005) 4 SCC 1 - referred to.
G 2.1. The legislature has used the word "Government"
in 0.27, r. SA and defined the same in 0.27, r. 88. The
intention is absolutely clear and unambiguous. It means
the "Government" in exclusivity. From the language
employed in 0. 27, rr SA and 88, it only means the
H "Government". In fact, r. 88 clearly states "in relation to
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 67
any suit by or against the Central Government or against A
a public officer in the service of the Government" and
similar language is used for the State Government.
Therefore, the legislature has deliberately used a
restrictive definition and its scope cannot be expanded
to cover an agency or instrumentality of the State by B
interpretative process. The legislature has defined the
term "Government" so as not to allow any room for
interpretation and speculation. It means either a Central
Government or a State Government and in certain cases
public officer in the service of a State. 0. 27, rr. SA and c
88 are applicable only to the Government and not to
instrumentality or agency of the State. Thus, it cannot be
accepted that the appellant being a Jal Sansthan it would
come within the extended wing of the Government. [Para
21, 23, 29 and 30) [79-F-G; 80-F-G; 86-C-E, G-H; 87-A]
D
State of Punjab and Others v. Raja Ram and Others 1981
(2) SCR 712 = (1981) 2 SCC 66; Ramana Dayaram Shetty
v. International Airport Authority of India and Others 1979
(3) SCR 1014 = (1979) 3 SCC 489; Pashupati Nath Sukut v.
Nem Chandra Jain and Others 1984 (1) SCR 939 = (1984) E
2 SCC 404; Pradyat Kumar Bose v. Hon'ble Chief Justice of
Calcutta High Court (1955) 2 SCR 1331; R.S. Nayak v. A.R.
Antulay 1984 (2) SCR 495 = (1984) 2 SCC 183 - relied on.
State of Kera/a v. Kuruvilla AIR 2004 Ker 233; and F
Collector, Cuttack v. Padma Charan Mohanty 50 (1980) CLT
191 - held inapplicable.
Utka/ Contractors & Joinery Pvt. Ltd. and Others v. State
of Orissa and Others 1987 (3) SCR 317 =AIR 1987 SC
1454; Dy. Chief Controller of Imports & Exports, New Delhi G
v. K. T. Kosa/ram and Others 1971 (2) SCR 507 = (1970) 3
sec 82 - referred to.
2.2. In certain contexts the term "Government" may
be required to be liberally construed and under certain H
68 SUPREME COURT REPORTS (2014) 1 S.C.R.
A circumstances it has to be understood in a narrow
spectrum. The concept of "State" as used under Art. 12
of the Constitution is quite different than what is meant
by an "Executive Government". An authority or
instrumentality of the State or agency of the State has to
li3 act in a fair, non-arbitrary and reasonable manner and, in
fact, is controlled by Chapter Ill of the Constitution but it
does not assume the character of "Government" for all
purposes. [Para 27 and 29) (84-F-G; 86-B-C]
Chander Mohan Khanna v. National Council of
C Educational Research and Training and others 1991 (1)
Suppl. SCR 165 = (1991) 4 SCC 578 - referred to.
3. The High Court has directed for deposit of the
money and withdrawal of the 50% of the same without
D furnishing security and remaining half after furnishing
security. The High Court has not given any justifiable
reason for permitting such withdrawal. The order is
modified and the appellant shall furnish the security for
the entire amount to the satisfaction of the District Judge.
E [Para 31) (87-B-D)
Case Law Reference:
AIR 2004 Ker 233 held inapplicable para 6
2006 (8) Suppl. SCR 178 referred to Para 13
F
2006 (8) Suppl. SCR 997 relied on para 15
(1998) s sec 676 referred to para 17
(2005) 4 sec 1 referred to para 18
G
1987 (3) SCR 317 referred to Para 22
1971 (2) SCR 507 referred to Para 22
1981 (2) SCR 712 relied on para 23
H
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 69
1979 (3) SCR 1014 relied on para 24 A
1984 (1) SCR 939 relied on para 25
(1955) 2 SCR 1331 relied on para 25
1984 (2) SCR 495 relied on para 26
B
1991 (1) Suppl. SCR 165 referred to Para 27
50 (1980) CLT 191 held inapplicable para 30
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 26
of 2014. c
From the Judgment & Order dated 17.07.2013 of the High
Court of Judicature at Allahabad in FAFO No. 875 of 2013.
Shail Kumar Dwivedi, Gunnam Venkateswara Rao, D
Siddharth Krishna Dwivedi for the Appellants.
Pradeep Kumar Yadav, P.J. Malkan, Amit Kumar Yadav
and Purvish, Jitendra Malkan for the Respondent.
The Judgment of the Court was delivered by E
DIPAK MISRA, J. 1. Leave granted.
2. Calling in question the defensibility of the order dated
17.7.2013 passed by the High Court of Judicature at Allahabad
in FAFO No. 875 of 2013 whereby the Division Bench, after F
admitting the appeal, while dealing with the application for stay,
directed the appellants to deposit the entire amount awarded
by the arbitrator in the court below with a further direction
permitting the claimant-respondent to withdraw half of the said
amount without furnishing security and remaining half after G
furnishing security to the satisfaction of the District Judge,
Kanpur with a further stipulation that in case of default in making
the deposit, the order of stay shall automatically stand vacated.
3. The essential facts which are to be stated for H
adjudication of this appeal are that an agreement was executed
70 SUPREME COURT REPORTS [2014] 1 S.C.R.
A between Kanpur Jal Sansthan, the appellant herein, with the
respondent, Mis. Bapu Construction, on 10.06.1987 for "supply
of sand for slow sand filter" for a value of Rs.21,43,200/-. As
per the conditions contained in the agreement the work was to
commence 23.5.1987 and was to be completed within one
B year. During the subsistence of the contract disputes arose
between the parties as a consequence of which the respondent
moved an application under Section 11 (5) and (6) of the
Arbitration and Conciliation Act, 1996 (for brevity "the Act") for
appointment of an arbitrator. After the learned Arbitrator was
c appointed, he proceeded with the arbitration and, eventually,
passed an award on 20.1.2009 allowing the claim of the
respondent by awarding a total sum of Rs.32,62,415.30 with a
further stipulation that the said sum shall carry interest at the
rate of 18% per annum from the year 1988. The appellant
C> herein filed an objection under Section 34 of the Act to set
aside the award dated 20.1.2009 in Arbitration Petition No. 32
of 2003 on many a ground. The learned District Judge, Kanpur,
vide order dated 30.3.2013, rejected the application which was
the subject-matter of Misc. Case No. 40/70 of 2009.
E 4. The failure in sustaining the objection before the learned
District Judge compelled the appellant to file FAFO No. 875
of 2013 before the High Court of Judicature at Allahabad. Along
with the appeal an application for stay was filed. The Division
Bench passed an interim order, as has been mentioned
F hereinbefore.
5. We have heard Mr. Shail Kumar Dwivedi, learned
counsel appearing for the appellants and Mr. Pradeep Kumar
Yadav, learned counsel appearing for the respondent.
G 6. Criticizing the justifiability of the order, Mr. Dwivedi,
learned counsel for the appellant, has submitted that the Division
Bench has fallen into error by directing deposit of entire award
amount and release of the same in favour of the claimant-
respondent applying the principle of Order XU Rule 5 of the
H Code of Civil Procedure though the said p;inciple is not
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 71
[DIPAK MISRA, J.]
applicable to the appellant which is an extended wing of the A
State. It is urged by him that the Division Bench has failed to
analyse the merits of the case, namely, the enormous delay in
filing the application for appointment of an arbitrator, nature of
claims which are absolutely stale and that apart, how the award
is flagrantly violative of public policy. It is further urged by him B
that the principle of Order XU Rule 5 ·of the Code has to be
read in harmony with Order XXVll Rule BA of the Code and on
such harmonious reading it is clear as sunshine that such a
condition is not likely to be imposed on a governmental
organization. To buttress his submission he has commended c
us to the decision in State of Kera/a v. Kuruvilla. 1
7. Mr. Yadav, learned counsel appearing for the
respondent, resisting the aforesaid submissions, contended that
after the objection preferred under Section 34 of the Act has
been rejected, the award passed by the learned Arbitrator D
becomes executable by itself and, therefore, it has the status
of a money decree and hence, the Division Bench has correctly
imposed the conditions and, therefore, no fault can be found
with the said order. It is contended by him that Order XU Rule
5 and Order XXVll Rule BA should be kept in different E
compartments failing which the decree holder would not be
able to realize the fruits the decree for a considerable length
of time and eventually it may become a paper tiger. He has
drawn inspiration from the decision in Sihor Nagar Palika
Bureau v. Bhabhlubhai Virabhai & Co. 2 to highlight that this F
Court had applied the principle behind Order XU Rule 5 to a
municipality and a "Jal Sansthan" does not enjoy a better status
than a municipality.
B. To appreciate the rivalised submissions raised at the G
Bar we think it apt to refer to the Scheme of the Act. Under the
Act, after the award is passed by the arbitrator, an application
for setting aside the arbifral award is permissible under
1. AIR 2004 Ker 233.
2. c2oos) 4 sec 1. H
72 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Chapter VII relating to arbitration under Part I. Chapter VIII
occurring in Part I provides about the finality and enforcement
of arbitral awards. Sections 35 and 36 which occur in this
Chapter are reproduced below: -
"35. Finality of arbitral awards. - Subject to this Part an
B
arbitral award shall be final and binding on the parties and
persons claiming under them respectively.
36. Enforcement. - Where the time for making an
application to set aside the arbitral award under Section
c 34 has expired, or such application having been made, it
has been refused, the award shall be enforced under the
Code of Civil Procedure, 1908 (5 of 1908) in the same
manner as if it were a decree of the Court."
0 9. On a reading of both the provisions it is clear as day
that the award becomes enforceable when the time for making
the application to set aside the arbitral award has expired or
having been filed it has been refused and further it is
enforceable in the same manner as if it were a decree of the
E Court. Thus, the award has the potentiality of enforcement.
Hence, when an appeal is filed against the rejection of the
objection preferred under Section 34 of the Act, the
enforceability of the award gains absolute ground. If an
application for stay has to be filed, it has to be filed relating to
stay of the operation of the award passed by the arbitrator. We
F are disposed to think so as the court rejecting the objection only
refuses to entertain the objection and thereafter the award
becomes enforceable as if it were a decree. In the present
case, it is not clear whether there was prayer for stay of the
award. However, we treat it as if there was a prayer for stay of
G the award and proceed accordingly.
10. At this juncture, we may refer with profit to Section 19
of the Act which occurs in Chapter V of the Act that deals with
conduct of arbitral proceedings. It provides for determination
H of rules of procedure. It reads as follows~ -
,.·
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 73
[DIPAK MISRA, J.]
"19. Determination of rules of procedure. - (1) The A
arbitral tribunal shall not be bound by the Code of Civil
Procedure, 1908 (5 of 1908) or the Indian Evidence Act,
1872 (1 of 1872).
(2) Subject to this Part, the parties are free to agree 8
on the procedure to be followed by the arbitral tribunal in
conducting its proceedings.
(3) Failing any agreement referred to in sub-section
(2), the arbitral tribunal may, subject to this Part, conduct
the proceedings in the manner it considers appropriate. C
(4) The power of the arbitral tribunal under sub-
section (3) includes the power to determine the
admissibility, relevance,· materiality and weight of any
evidence." D
11. Section 2(e) of the Act defines "Court" to mean 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 subject-matter of arbitration if the same has been the E
subject-matter of a suit but does not include any Civil Court of
a grade !nferior to such principal Civil Court or any Court of
Small Causes.
12. Section 37 of the Act deals with appealable orders. F
For the sake of completeness it is reproduced below: -
"37. Appealable orders. - (1) An appeal shall lie from the
following orders (and from no others) to the Court
authorized by law to hear appeals from original decrees G
of the Court passing the order, namely: - ·
(a) Granting or refusing to grant any measure under
section 9;
(b) Setting aside or refusing to set aside an arbitral H
74 SUPREME COURT REPORTS [2014] 1 S.C.R.
A award under section 34.
(2) An appeal shall also lie to a Court from an order
granting of the arbitral tribunal. -
(a) accepting the plea referred in sub-section (2) or
B ·sub-section (3) of section 16; or
(b) granting or refusing to grant an interim measure
under Section 17.
(3) No second appeal shall lie from an order passed
c in appeal under this section, but nothing in this
section shall affect or take away any right to appeal
to the Supreme Court."
13. At this stage, we are obliged to refer to the decision
D in Paramjeet Singh Patheja v. /CDS Ltd. 3 In the said case
question arose whether an award passed by an arbitral tribunal
under the Act is a decree for the purposes of the provision of
the Presidency Towns Insolvency Act, 1909. The two Judge
Bench referred to various provisions of the Arbitration Act 1899,
E The Presidency Towns Insolvency Act, 1909 and the Civil
Procedure Code, 1908, the concept of decree under the Code,
the provisions contained as regards award in Arbitration Act,
1940 and Section 36 of the Arbitration and Conciliation Act,
1996 and opined as follows:-
F
"In fact, Section 36 goes further than Section 15 of the
1899 Act and makes it clear beyond doubt that
enforceability is only to be under CPC. It rules out any
argument that enforceability as a decree can be sought
under any other law or that initiating insolvency proceeding
G is a manner of enforcing a decree under CPC."
The learned Judges further discussing the principles
proceeded to state as follows.
H 3. (2006) 13 sec 322.
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 75
[DIPAK MISRA, J.]
"Issuance of a notice under the Insolvency Act is fraught A
with serious consequences: it is intended to bring about
a drastic change in the status of the person against whom
a notice is issued viz. to declare him an insolvent with all
. the attendant disabilities. Therefore, firstly, such a notice
was inte.nded to be issued only after a regularly constituted B
court, a component of the judicial organ established for the
dispensation of justice, has passed a decree or order for
the payment of money. Secondly, a notice \Jnder I
the
Insolvency Act is not a mode of enforcin9 a debt;
enforcement is done by taking steps for execution c
available under CPC for realising monies.
42. The words "as if' demonstrate that award and decree
o~ order are two different things. The legal fiction qreated
is;for the limited purpose of enforcement as a decree. The
fiction is not intended to make it a decree for all purposes D
under all $tatutes, whether State or Central."
14. We haVEr referred to aforesaid authority solely for the
purpose that whatever may be the status of the award, under
the Act in respect of any other Statute, but when it is challenged E
in an appeal under Section 37 of the Act the underlying
principle of the Code of Civil Procedure is applicable. We, have
thought we should clarify the position as it may not be
understood that the decision in Pramjeet Singh Patheja (s~pra)
conveys that it is. not a decree for all purposes and the F
principles under the Code while an appeal is preferred is riot
applicable.
15. In Mis. Pandey & Co. Builders Pvt. Ltd. v. State of
Bihar and Another, 4 it has been held that a forum of an
appellate court must be determined with reference to the G
definition thereof contained in the 1996 Act. The aforesaid
decision further reinforces the conclusion that Order XU Rule
5 in principle is applicable to an appeal preferred befbre the
4. AIR 2007 SC 465. H
76 SUPREME COURT REPORTS [2014] 1 S.C.R.
A High Court, for there is no provision in the Act prohibiting the
appellate court not to take recourse to the underlying principles
of the Code of Civil Procedure as long as they are in
consonance with the spirit and principles engrafted under the
Act.
B
16. Presently to the anatomy of Order XU. It deals with
appeals from original decrees. Order XU Rule 5 provides for
stay by Appellate Court. To have a complete picture, it is
necessary to reproduce the Rule in entirety: -
c "5. Stay by Appellate Court. - (1) An appeal shall not
operate as a stay of proceedings under a decree or order
appealed from except so far as the Appellate Court may
order, nor shall execution of a decree be stayed by reason
only of an appeal having been preferred from the decree;
D but the Appellate Court may for sufficient cause order stay
of execution of such decree.
(2) Stay by Court which passed the decree. - Where
an application is made for stay of execution of an
E appealable decree before the expiration of the time
allowed for appealing therefrom, the Court which passed
the decree may on sufficient cause being shown order the
execution to be stayed.
(3) No order for stay of execution shall be made under sub-
F rule (1) or sub-rule (2) unless the Court making it is satisfied
(a) that substantial loss may result to the party applying
for stay of execution unless the order is made;
G (b) that the application has been made without
unreasonable delay; and
(c) that security has been given by the applicant for the
due performance of such decree or order as may
H ultimately be binding upon him.
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 77
[DIPAK MISRA, J.]
(4) Subject to the provisions of sub-rule (3), the Court may A
make an ex parte order for stay of execution pending the
hearing of the application.
(5) Notwithstanding anything contained in the foregoing
sub-rules, where the appellant fails to make the deposit or 8
furnish the security specified in sub-rule (3) of rule 1, the
Court shall not m.ake an order staying the execution of the
decree."
17. At this stage, regard being had to the schematic
content of order XU Rule 5, we think it appropriate to refer to C
: certain authorities how the language employed in the said Rule
has been appreciated and understood by this Court. In
Kayamuddin Shamsuddin Khan v. State Bank of lndia 5 while
dealing the command of the provision relating to deposit the
Court had to say: D
" ... that when non-compliance with the direction given
regarding deposit under sub-rule (3) of Rule 1 of Order XU
would result in the Court refusing to stay the execution of
the decree. In other words, the application for stay of the E
execution of the decree could be dismissed for such non-
compliance but the Court could not give a direction for th1e
dismissal of the appeal itself for such non-compliancef"
18. In Sihor Nagar Palika Bureau v. Bhabh/ubhai Virabhai
& Co., 6 this Court was- dealing with the situation where the F
appellant municipality constituted and governed by the provision
of Gujrat Municipalities Act, 1963 had assailed a money decree
in appeal and the High Court in appeal had directed stay of
the execution of operation of the money decree subject to the
condition that the appellant shall deposit a certain sum with G
interest by a particular date. In that context the Court adverted
to Order XU Rule 1(3) and 5 (5) and opined thus:-
5. (1998) a sec 676.
6. (2005) 4 sec 1. H
78 SUPREME COURT REPORTS [2014) 1 S.C.R.
A "Order 41 Rule 1(3) CPC provides that in an appeal
against a decree for payment of amount the appellant shall,
within the time permitted by the appellate court, deposit
the amount disputed in the appeal or furnish such security
in respect thereof as the court may think fit. Under Order
B 41 Rule 5(5), a deposit or security, as abovesaid, is a
condition precedent for an order by the appellate court
staying the execution of the decree. A bare reading of the
two provisions referred to hereinabove. shows a discretion
having been conferred on the appellate court to direct
either deposit of the amount disputed in the appeal or to
c permit such securitv in respect thereof being furnished as
the appellate court may think fit. Needless to say that the
discretion is to be exercised judicially and not arbitrarily
depending on the facts and circumstances of a given case.
Ordinarily, execution of a money decree is not stayed
D inasmuch as satisfaction of money decree does not
amount to irreparable injury and in the event of the appeal
being allowed, the remedy of restitution is always available
to the successful party. Still the power is there, of course
a discretionary power, and is meant to be exercised in
E appropriate cases."
[Emphasis supplied]
19. The submission advanced by the learned counsel for
F the appellants that the provisions contained in Order XLI Rule
5 and XXVll Rule 8A of the Code should be read harmoniously
to avoid any conflict. Rule 8A of Order XXVll reads as follows:-
"8A. No security to be required from Government or
a public officer in certain cases. - No such security as
G is mentioned in rules 5 and 6 of Order XLI shall be
required from the Government or, where the Government
has undertaken the defence of the suit, from any public
officer sued in respect of an act alleged to be done by him
in his official capacity."
H
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 79
[DIPAK MISRA, J.]
20. As far as the Government is concerned, it has been A
defined in Order XXVll Rule 88. It reads as follows: -
"SB. Definitions of "Government" and "Government
pleader". - In this order unless otherwise expressly,
provided "Government and "Government pleader'' mean 8
respectively -
(a) In relation to any suit by or against the Central
Government or against a public officer in the service
of the Government, the Central Government and
such pleader as that Government may appoint C
whether generally or specially for the purpose of this
Order;
(b) (omitted by the A.O. 1948)
D
(c) In relation. to any suit by or against a State
Government or against a public officer in the service
of a State, the State Government and the
Government pleader as defined in clause (7) of
section 2, or such other pleader as the State
Government may appoint, whether generally or E
specially, for the purpose of this order." ·
21. The legislature has defined the term "Government" not
to allow any room for interpretation and speculation. It means
either a Central Government or 'a State Government and in F
certain cases public officer in the service of a State. Learned
counsel for the appellant has contended that the appellant
"Kanpur Jal Sansthan" is an extended wing of the State and,
therefore, is a part of the Government. On a bare glance at the
aforesaid provisions it is perspicuous that it categorically lays G
a ~ostulate that as far as the Government or a public officer is
concerned in certain cases the stipulations incorporated in
Order XU Rule 5 would not be applicable.
22. Having regard to the aforesaid provisions it is
H
80 SUPREME COURT REPORTS [2014] 1 S.C.R.
A necessary to appreciate the definitive character of the
Government in the context it has been used. In Utkal
Contractors & Joinery Pvt. Ltd. and Others v. State of Orissa
and Others, 7 it has been laid down that while the words of an
enactment are important the context is not less important. It has
B also been stated that no provision in the statute and no word
of the statute may be construed in isolation. The importance of
setting and the pattern are to be kept in mind. In Dy. Chief
Controller of Imports & Exports, New Delhi v. K. T. Kosa/ram
and Others6 this Court has observed as under:
c "What particular meaning should be attached to words and
phrases in a given instrument is usually to be gathered
from the context, the nature of the subject-matter, the
purpose or the intention of the author and the effect of
giving to them one or the other permissible meaning on
D the object to be achieved. Words are after all used merely
as a vehicle to convey the idea of the speaker or the writer
and the words have naturally, therefore, to be so construed
as to fit in with the idea which emerges on a consideration
of the entire context. Each word is but a symbol which may
E stand for one or a number of objects. The context, in which
a word conveying different shades of meanings is used,
is of importance in determining the precise sense which
fits in with the context as intended to be conveyed by the
author. .. ."
F
23. As we perceive, the legislature has used the word
"Government" in Order XXVll Rule SA and defined the same in
Order XXVll Rule BB. The intention is absolutely clear and
unambiguous. It means the "Government" in exclusivity. The
G submission of the learned counsel for the appellants that the
appellant being a Jal Sansthan it would come within the
extended wing of the Government does not commend
acceptation.
7. AIR 1987 SC 1454.
H a. (1970) 3 sec 82.
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 81
[DIPAK MISRA, J.]
24. We have reasons to so conclude. In State of Punjab A
and others v. Raja Ram and Others, 9 a two-Judge Bench, after
referring to a passage from Ramana Dayaram Sheffy v.
International Airport Authority of India and Others10 and stating
what makes a corporation an agency or instrumentality of the
Central Government, opined thus: - B
"Even the conclusion, however, that the Corporation is an
agency or instrumentality of the Central Government does
not lead to the further inference that the Corporation is a
Government department."
c
25. In Pashupati Nath Sukut v. Nem Chandra Jain and
Others, 11 a question arose whether the Secretary of a State
Legislative Assembly is qualified or not to be appointed as the
Returning Officer at an election held to fill a seat in the Rajya
Sabha. The High Court of Allahabad had returned a finding that D
the Secretary of the Legislative Assembly was neither an officer
of the Government nor of a local authority and hence, could not
have been appointed as the Returning Officer under Section
21 of the Representation of the People Act, 1951. Dealing with
the said issue, the three-Judge Bench proceeded to analyse E
whether the expression "Government" used in Section 21 would
mean the "Executive Government" in the narrow sense or a
liberal construction should be placed. The Court referred fo
Section 3(23) of the General Clauses Act, 1897 which defines
"Government" to mean "Government" or "the Government" to F
include both the Central Government and any State
Government. Thereafter, the Court referred to certain
constitutional provisions, namely, Articles 12, 102(1)(a),
191(1)(a), 98, 187, 146, 229, 148(5), 311 and 318 and the
decision in Pradyat Kumar Bose v. Hon'ble Chief Justice of G
Calcutta High Court12 and adverted to the concept of local
9. (1981) 2 sec 66.
10. (1979) 3 sec 489.
11. (1984) 2 sec 404.
12. (1955) 2 SCR 1331. H
82 SUPREME COURT REPORTS [2014] 1 S.C R.
A Government, as understood in the context of Entry 5 of List II
of the Seventh Schedule to the Constitution, the concept of
State in International Law and thereafter to the conception of
the federal construction of the Constitution and the conception
of governance under the Constitution and, eventually, opined
a that: -
"From the legal point of view, government may be
described as the exercise of certain powers and the
performance of certain duties by public authorities or
officers, together with certain private persons or
c corporations exercising public functions. The structure of
the machinery of Government and the regulation of the
powers and duties which belong to the different parts of
this structure are defined by the law which also prescribes
to some extent the mode in which these powers are to be
exercised or these duties are to be performed (see
Halsbury's Laws of England, Fourth Edition, Vol. 8, para
804). Government generally connotes three estates,
namely, the Legislature, the Executive and the Judiciary
while it is true that in a narrow sense it is used to connote
the Executive only. The meaning to be assigned to that
expression, therefore, depends on the context in which it
is used."
Thereafter the Court proceeded to further rule thus: -
"We are of the view that the word 'Government' in Article
102(1 )(a) and in Article 191 (1 )(a) of the Constitution and
the word 'Government' in the expression "an officer of
Government" in Section 21 of the Act should be interpreted
liberally so as to include within its scope the Legislature.
the Executive and the Judiciary. The High Court erred in
equating the word 'Government' occurring in Section 21
of the Act to the Executive Government only and in further
holding that the officers of the State Legislature could not
be treated as officers of Government for purposes of that
H section."
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 83
[DIPAK MISRA, J.]
. [Emphasis supplied] A
26. In R.S. Nayak v. A.R. Antu/ay, 13 the Court was dealing
with as to what the expression "Government" exactly connotes
in the context of Indian Penal Code. Answering the issue the
Constitution Bench stated thus: -
B
''There is a short and a long answer to the problem. Section
17 IPC provides that "the word 'Government' denotes the
Central Government or the Government of a State".
Section 7 IPC provides that "every expression which is
explained in any part of the Code, is used in every part of C
the Code in conformity with the explanation". Let it be
noted that unlike the modern statute Section 7 does not
provide "unless the context otherwise indicate" a phrase
that prefaces the dictionary clauses of a modern statute.
Therefore, the expression "Government" in Section D
21 (12){a) must either mean the Central Government or the
Government of a State."
After so stating the Larger Bench referred to many an
authority and proceeded to rule thus: -
E
"56. There thus is a broad division of functions such as
executive, legislative and judicial in our Constitution. The
Legislature lays down the broad policy and has the power
of purse. The Executive executes the policy and spends
from the Consolidated Fund of the State what Legislature F
has sanctioned. The Legislative Assembly enacted the Act
enabling to pay to its members salary and allowances. And
the members vote the grant and pay themselves. In this
background even if there is an officer to disburse this
payment or that a pay bill has-to be drawn-up are not such G
factors being decisive of the matter. That is merely a
a
mode of payment, but the MLAs by vote retained the
fund earmarked for purposes of disbursal for pay and
13. (1984} 2 sec 183. H
84 SUPREME COURT REPORTS [2014) 1 S.C.R.
A allowances payable to them under the relevant statute.
Therefore, even though MLA receives pay and allowances,
he is not in the pay of the State Government because
Legislature of a State cannot be comprehended in the
expression "state Government".
B
57. This becomes further clear from the provision
contained in Article 12 of the Constitution which provides
that "for purposes of Part Ill, unless the context otherwise
requires, "the State" includes the Government and
Parliament of India and the ·Government and the
Legislature of each of the States and all local or other
authorities within the territory of India or under the control
of the Government of India". The expression "Government
and Legislature", two separate entities, are sought to be
included in the expression "state" which would mean that
D otherwise they are distinct and separate entities. This
conclusion is further reinforced by the fact that the
Executive sets up its own secretariat. while Article 187
provides for a secretarial staff of the Legislature under the
control of the Speaker. whose terms and conditions of the
E service will be determined by the Legislature and not by
the Executive. When all these aspects are pieced together.
the expression "Government" in Section 21(12)(a) clearly
denotes the Executive and not the Legislature."
[Underlining is ours]
27. We have referred to the aforesaid authorities to
highlight that in certain contexts the term "Government" may be
required to be liberally construed and under certain
circumstances it has to be understood in a narrow spectrum.
G The concept of "State" as used under Article 12 is quite
different than what is meant by an "Executive Government". In
fact to determine whether a body is an instrumentality or
agency of the Government this Court has laid down general
principles but no exhaustive tests have been specified. As has
H been held in Chander Mohan Khanna v. Nation:i/ Council of
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 85
[DIPAK MISRA, J.]
Educational Research and Training and others, 14 even in A
general principles there is no cut and dried formula which would
provide correct division of bodies into those which are
instrumentalities or agencies of the Government and those
which are not. In that case the Court opined that where the
financial assistance from the State is so much as to meet 8
almost entire expenditure of the institution, or the share capital
of the corporation is completely held by the Government, it
would afford some indication of the bodies being impregnated
with governmental character. It may be a relevant factor if the
institution or the corporation enjoys monopoly status which is C
State conferred or State protected. Existence of deep and
pervasive State control may afford an indication. It has been
laid down therein that if the functions of the institution are of
public importance and related to governmental functions, it
would also be a relevant factor and these are merely indicative
indicia and are by no means conclusive or clinching in any case. D
It has been further opined therein, after referring to host of
decisions, that a wide enlargement of the meaning must be
tempered by a wise limitation, for the State control does not
render such bodies as "State" under Article 12 of the
Constitution. The State control, however, vast and pervasive is E
not determinative; the financial contribution by the State is also
not conclusive. If the Government operates behind a corporate
veil, carrying out governmental functions of vital pubJic"
importance, there may be little difficulty in identifying the body
as "State". F
28. At this stage, we may usefully refer·to a three-Judge
Bench decision in Ramana Dayaram Shetty (supra) wherein
Bhagwati, J. (as his Lordship then was) opined that where a
corporation is an instrumentality or agency of Government, it G
would, in the exercise of its power or discretion, be subject to
the same constitutional or public law limitations as Government.
The rule inhibiting arbitrary action by Government must apply
equally where such corporation is dealing with the public,
14. (1991) 4 sec 578. H
/
86 SURREME COURT REPORTS [2014] 1 S.C.R.
A whether by way of giving jobs or entering into contracts or
otherwise. and it cannot act arbitrarily and enter into relationship
with any person it likes at its sweet will, but its action must be
in conformity with some principle which meets the test of reason
and relevance. This rule also flows directly from the doctrine of
8 equality embodied in Article 14.
29. The reference to the aforesaid authorities by us is only
for the purpose that an authority or instrumentality of the State
or agency of the State has to act in a fair, non-arbitrary and
reasonable manner and, in fact, is controlled by Chapter Ill of
C the Constitution but it does not assume the character of
"Government" for all purposes. As we find from the language
employed in Order XXVll Rules 8A and 88, it only means the
"Government". In fact, Rule 88 clearly states "in relation to any
suit by or against the Central Government or against a public
D officer in the service of the Government" and similar language
is used for the State Government. Hence, the legislature has
deliberately used a restrictive definition and its scope cannot
be expanded to cover an agency or instrumentality of the State
by interpretative process.
E
30. Learned counsel for the appellants, as stated earlier,
has commended us to the decision in Kuruvilla (supra) of the
High Court of Kerala wherein the Division Bench placing
reliance on the decision in Collector. Cuttack v. Padma Charan
F Mohanty15 has basically dealt with the applicability of Order
XXVll Rule BA and grant of stay under Order XLI Rule 5 when
the State is the appellant. We do not intend to express any
opinion on the correctness of the said decisions as the
controversy does not arise in the present case because it is
neither the Central Government nor the State Government in that
G sense in appeal before us. It is the "Jal Sansthan" which claims
to be an extended wing or agency of the State has preferred
the appeal. We have clearly ruled that Order XXVll Rules 8A
and 88 are applicable only to the Government and not to
H 15. 50 1980 CLT 191
KANPUR JAL SANSTHAN v. BAPU CONSTRUCTION 87
'
[DIPAK MISRA, J.]
instrumentality or agency of the State. That is the specific and A
definite language employed by the legislature and for that
purpose we have drawn a distinction between the concept of
"State" under Article 12 and the "Government" as used in Order
XXVll Rules 8A and 88.
B
31. Coming to the legal validity of the impugned order we
find that the High Court has directed for deposit of the money
and withdrawal of the 50% of the same without furnishing
security and remaining half after furnishing security. The High
Court has not given any justifiable reason for permitting such C
withdrawal. Without commenting on the merits of the grounds
sought to be urged before us (to which we have not referred
to in detail not being necessary) we only modify the order that
the appellant shall furnish the security for the entire amount to
the satisfaction of the concerned District Judge within a period
of six weeks. As the scope of appeal is very limited, we would D
request the High Court to dispose of the appeal by the end of
June, 2014.
32. Resultantly, with the aforesaid modifications in the
order passed by High Court, the appeal stands disposed E
without any order as to costs.
R.P. Appeal disposed of.
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