# M/s A2z Waste Management (Meerut) Pvt. Ltd v. Construction & Design Services, U.P. & Ors

- **Citation:** (2024) 5 ILRA 542
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-09
- **Case number:** Matters U/A 227 No. 2098 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-a2z-waste-management-meerut-pvt-ltd-v-construction-design-services-u-p-ors-52141
- **Pages:** 14

## Headnote

Sri Indu Prakash Singh, Sri Manish Kumar
Srivastava,
Sri
Pankaj
Srivastava,
Sri
Santosh Srivastava

Civil Law - Arbitration and Conciliation Act,
1996 - Sections 34 & 42 - Commercial
Courts Act, 2015 - Section 16 r/w Article 6
of Schedule - Civil Procedure Code, 1908 -
Order XV-A Rules 1, 2 and 3 - The Code of
Criminal
Procedure, 1973
-
Sections
195(1)(b), 340 - Indian Penal Code, 1860
- Section 191 - Constitution of India -
Article 215 - Oath's Act, 1969 - Section 8 -
Petitioner filed arbitration claim against
respondent Nos.1 to 3 in 2012/2013 -
Arbitration
award
was
passed
on
29.05.2019, directing respondents to pay
Rs. 66 Crores, alongwith 18 % interest p/a
to petitioner - Arbitration proceedings and
arbitration award was passed at Lucknow
on 29.05.2019 and respondent Nos.1 and 2
filed application u/s 34 in Commercial
Court at Lucknow on 11.09.2019, the
respondent No. 3 filed application u/s 34
challenging award before District Judge,
Meerut on 05.10.2019 - Apparently, after
an application u/s 34 filed in Commercial
Court, no subsequent application could be
filed before any other court - After expiry
of about 1 year and 9 months since filing of
application at Meerut, on 24.06.2021 the
respondent no. 3 filed Transfer Application
at Allahabad for transfer of case from
Meerut to Lucknow - By interim order
dated
05.07.2021,
proceedings
of
application filed at Meerut also Arbitration
Case in Commercial Court was stayed - In
view of facts and circumstances, prayer for
expeditious disposal of proceedings was
allowed - Perjury application against
petitioner, rejected. (Para 22, 23, 24, 25,
28, 31, 54)

Petition allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,558 of 46,474. This is a partial read: ask again with offset=39558 for what follows._

542 INDIAN LAW REPORTS ALLAHABAD SERIES
commence work within the aforesaid period
of four weeks.

47. The writ petition is allowed in
the above terms.
----------
(2024) 5 ILRA 542
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matters U/A 227 No. 2098 of 2024

M/s A2z Waste Management (Meerut) Pvt.
Ltd. ...Petitioner
Versus
Construction & Design Services, U.P. & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Suyash Gupta

Counsel for the Respondents:
Sri Indu Prakash Singh, Sri Manish Kumar
Srivastava,
Sri
Pankaj
Srivastava,
Sri
Santosh Srivastava

Civil Law - Arbitration and Conciliation Act,
1996 - Sections 34 & 42 - Commercial
Courts Act, 2015 - Section 16 r/w Article 6
of Schedule - Civil Procedure Code, 1908 -
Order XV-A Rules 1, 2 and 3 - The Code of
Criminal
Procedure, 1973
-
Sections
195(1)(b), 340 - Indian Penal Code, 1860
- Section 191 - Constitution of India -
Article 215 - Oath's Act, 1969 - Section 8 -
Petitioner filed arbitration claim against
respondent Nos.1 to 3 in 2012/2013 -
Arbitration
award
was
passed
on
29.05.2019, directing respondents to pay
Rs. 66 Crores, alongwith 18 % interest p/a
to petitioner - Arbitration proceedings and
arbitration award was passed at Lucknow
on 29.05.2019 and respondent Nos.1 and 2
filed application u/s 34 in Commercial
Court at Lucknow on 11.09.2019, the
respondent No. 3 filed application u/s 34
challenging award before District Judge,
Meerut on 05.10.2019 - Apparently, after
an application u/s 34 filed in Commercial
Court, no subsequent application could be
filed before any other court - After expiry
of about 1 year and 9 months since filing of
application at Meerut, on 24.06.2021 the
respondent no. 3 filed Transfer Application
at Allahabad for transfer of case from
Meerut to Lucknow - By interim order
dated
05.07.2021,
proceedings
of
application filed at Meerut also Arbitration
Case in Commercial Court was stayed - In
view of facts and circumstances, prayer for
expeditious disposal of proceedings was
allowed - Perjury application against
petitioner, rejected. (Para 22, 23, 24, 25,
28, 31, 54)

Petition allowed. (E-13)

List of Cases cited:

1. M/S Chopra Fabricators and Manufacturers Pvt.
Ltd. Vs Bharat Pumps & Compressors Ltd. & anr.:
(2023) 2 SCC 481

2. Dhananjay Sharma Vs St. of Har. & ors. (1995)
3 SCC 757

3. S. P. Chengal Varaya Naidu Vs Jagannath & ors.
(1994) 1 SCC 1

4. Hamza Haji Vs St. of Kerala (2006) 7 SCC 416

5. K. D. Sharma Vs Steel Authority of India Ltd. &
ors. (2008) 12 SCC 481

6. ABCD Vs U.O.I. & ors. (2020) 2 SCC 52

7. Dhananjay Sharma Vs St. of Har. (1995) 3 SCC 757

8. S. P. Chengalvaraya Naidu Vs Jagannath,
(1994) 1 SCC 1

9. K.D. Sharma Vs SAIL, (2008) 12 SCC 481

10. P. S. Sathappan Vs Andhra Bank Ltd., (2004)
11 SCC 672

11. Amrendra Pratap Singh Vs Tej Bahadur
Prajapati: (2004) 10 SCC 65
5 All. M/s A2z Waste Management (Meerut) Pvt. Ltd. Vs. Construction & Design Services, U.P.
 & Ors.
543
12. Sasikala Pushpa & ors. Vs St. of T. N. (2019)
6 SCC 477

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Jaideep Narain Mathur
Senior Advocate assisted by Sri Suyash
Gupta Advocate, the learned Counsel for the
petitioner and Shri Indu Prakash Singh,
learned counsel for the respondent No.1 -
Construction and Design Services, U.P. Jal
Nigam and respondent no. 2 - U.P. Jal
Nigam and Sri Pankaj Srivastava, the
learned counsel for the respondent No.3 -
Municipal Corporation, Meerut.

2. By means of the instant petition filed
under Article 227 of the Constitution of
India, the petitioner has sought a direction
for expeditious disposal of Arbitration Case
No.831 of 2019 pending in Commercial
Court No. 2, Lucknow. The aforesaid case is
an application under Section 34 of the
Arbitration and Conciliation Act which was
filed by the respondent no. 1 and 2 on
11.09.2019 challenging an Arbitration
Award dated 29.05.2019 passed in favour of
the petitioner.

3. A copy of the entire order sheet of
the proceedings under Section 34 of the
Arbitration and Conciliation Act has been
annexed with the petition. A copy of an
order dated 10.07.2023 passed by this Court
sitting at Allahabad in Transfer Application
No.278 of 2021 has also been annexed with
the petition. The said Transfer Application
was filed by Meerut Municipal Corporation
(respondent No.3 in this petition) seeking
transfer of Case No. Nil of 2019 in the Court
of the District Judge, Meerut, which was an
application under Section 34 of Arbitration
and Conciliation Act filed by the respondent
no. 3 on 05.10.2019 challenging the same
arbitration award dated 29.05.2019. The
Transfer Application was allowed by means
of an order dated 10.07.2023 and the
application under Section 34 of the
Arbitration and Conciliation Act, 1996 filed
by the respondent no. 3 at Meerut was
transferred to Lucknow and it was directed
that that the same shall be heard along with
Arbitration Case No.831 of 2019. After
being transferred to Commercial Court - 2,
Lucknow, the application under Section 34
filed by the respondent no. 3 has been
registered as Arbitration Case No. 133 of
2023.

4. When the case was taken up as fresh
on 27.04.2024, the learned counsel for the
respondent Nos.1 and 2 had sought two
days' time to seek instructions in the matter.
On 01.05.2009, the learned counsel for the
respondent No.3 filed an application under
Section 340 Cr.P.C. and the learned counsel
for respondent No.1 and 2 filed counter
affidavit/objections against the petition
under Article 227 of the Constitution of
India. Subsequently, the respondent Nos.1
and 2 have also filed a counter affidavit.

5. It is relevant to note that Section 34
(6) of Arbitration and Conciliation Act
contains a statutory mandate that an
application under this Section shall be
disposed of expeditiously and in any event,
within a period of one year from the date on
which notice referred to in Sub Section (5)
is served upon the other party. This statutory
mandate cannot be altogether ignored by the
Commercial Court and by this Court.

6. The application under Section 34 is
pending before a Commercial Court, which
has been constituted under the Commercial
Courts Act, 2015. The statement of objects
and reasons of the Commercial Courts Act,
2015 states that: -
544 INDIAN LAW REPORTS ALLAHABAD SERIES

"The proposal to provide for
speedy disposal of high value commercial
disputes has been under consideration of the
Government for quite some time. The high
value commercial disputes involve complex
facts and question of law. Therefore, there is
a need to provide for an independent
mechanism for their early resolution. Early
resolution of commercial disputes shall
create a positive image to the investor world
about the independent and responsive
Indian legal system."

7. The object of the Commercial
Courts,
Commercial
Division
and
Commercial Appellate Division of High
Courts Bill, 2015, was inter alia, to amend
the Code of Civil Procedure, 1908, as
applicable to the Commercial Courts and
Commercial Divisions which shall prevail
over the existing High Courts Rules and
other provisions of the Code of Civil
Procedure, 1908, so as to improve the
efficiency and reduce delays in disposal of
commercial
cases
and
to
accelerate
economic growth, improve the international
image of the Indian Justice delivery system,
and the faith of the investor world in the
legal culture of the nation.

8. The Statement of Objects and
Reasons of Amendment Act 28 of 2018
states
that
"The
global
economic
environment has since become increasingly
competitive and to attract business at
international level, India needs to further
improve its ranking in the World Bank
'Doing Business Report' which, inter alia,
considers
the
dispute
resolution
environment in the country as one of the
parameters for doing business. Further, the
tremendous economic development has
ushered in enormous commercial activities
in the country including foreign direct
investments, public private partnership, etc.,
which has prompted initiating legislative
measures
for
speedy
settlement
of
commercial disputes, widen the scope of the
courts to deal with commercial disputes and
facilitate ease of doing business. Needless to
say that early resolution of commercial
disputes of even lesser value creates a
positive image amongst the investors about
the strong and responsive Indian legal
system. It is, therefore, proposed to amend
the Commercial
Courts,
Commercial
Division
and
Commercial
Appellate
Division of High Courts Act, 2015.

9. The object of enactment of
Commercial Court Act, 2015 shows that the
legislature was concerned about the image
of the Indian justice delivery system and the
legal
culture
of
the
nation,
which
unfortunately is that the proceedings are not
decided expeditiously in the courts in India.

10. Section 16 of the Commercial
Courts Act, 2015 provides as follows: -

"16. Amendments to the Code of
Civil Procedure, 1908 in its application to
commercial disputes.-(1) The provisions
of the Code of Civil Procedure, 1908 (5 of
1908) shall, in their application to any suit
in respect of a commercial dispute of a
Specified Value, stand amended in the
manner as specified in the Schedule.

(2) The Commercial Division and
Commercial
Court
shall
follow
the
provisions of the Code of Civil Procedure,
1908 (5 of 1908), as amended by this Act, in
the trial of a suit in respect of a commercial
dispute of a specified value.

(3) Where any provision of any
Rule of the jurisdictional High Court or any
amendment to the Code of Civil Procedure,
1908 (5 of 1908), by the State Government
5 All. M/s A2z Waste Management (Meerut) Pvt. Ltd. Vs. Construction & Design Services, U.P.
 & Ors.
545
is in conflict with the provisions of the Code
of Civil Procedure, 1908 (5 of 1908), as
amended by this Act, the provisions of the
Code of Civil Procedure as amended by this
Act shall prevail."

11. By means of Entry 6 of the
Schedule appended to the Commercial
Courts Act 2015, which is referred to in
Section 16 (1), Chapter XV-A has been
inserted in C.P.C. applicable to the
Commercial
Courts,
which
contains
provisions for holding a case management
hearing. Rules 1, 2 and 3 of Order XV-A
C.P.C. applicable to the Commecial Courts
provide as follows: -

"ORDER XV-A

Case Management Hearing

1.
First
Case
Management
Hearing.-The court shall hold the first
Case Management Hearing, not later than
four weeks from the date of filing of affidavit
of admission or denial of documents by all
parties to the suit.

2. Orders to be passed in a Case
Management
Hearing.-In
a
Case
Management Hearing, after hearing the
parties, and once it finds that there are
issues of fact and law which require to be
tried, the court may pass an order-

(a) framing the issues between the
parties in accordance with Order XIV of
the Code of Civil Procedure, 1908 (5 of
1908) after
examining
pleadings,
documents and documents produced before
it, and on examination conducted by the
court under Rule 2 of Order X, if required;

(b)
listing
witnesses
to
be
examined by the parties;

(c) fixing the date by which
affidavit of evidence to be filed by parties;

(d) fixing the date on which
evidence of the witnesses of the parties to be
recorded;

(e) fixing the date by which written
arguments are to be filed before the court by
the parties;

(f) fixing the date on which oral
arguments are to be heard by the court; and

(g) setting time limits for parties
and their advocates to address oral
arguments.

3. Time limit for the completion of
a trial.-In fixing dates or setting time limits
for the purposes of Rule 2 of this order, the
court shall ensure that the arguments are
closed not later than six months from the
date of the first Case Management
Hearing."

12. The Commercial Court as well as
this Court cannot ignore the provision
contained in Section 34 (6) of the
Arbitration and Conciliation Act, 1996 and
the object of enactment of Commercial
Courts Act, 2015 and the provisions of
Order XV-A C.P.C. applicable to the
Commercial Courts.

13. The petitioner has approached this
Court with a prayer for issuance of a
direction for expeditious disposal of the
application under Section 34 of the
Arbitration and Conciliation Act in respect
of an arbitration award passed way back on
29.05.2019. This Court cannot appreciate
the opposition of the respondent No.3 against
issuance of such a direction, when the arbitration
award directs the respondents to pay a sum of
Rs.Six Crores alongwith 18% interest, and the
amount of interest is increasing with each
passing day and it will be a burden on the public
exchequer in case the outcome of the application
under Section 34 of Arbitration and Conciliation
Act is not favourable to the respondents.
546 INDIAN LAW REPORTS ALLAHABAD SERIES

14. T he learned counsel for the
petitioner has placed Reliance on an order
passed by the Hon'ble Supreme Court in the
case of M/S Chopra Fabricators and
Manufacturers Pvt. Ltd. Vs. Bharat
Pumps and Compressors Ltd. and
another: (2023) 2 SCC 481, where in the
Hon'ble Supreme Court expressed its
serious concern about the delays in disposal
of execution cases filed in the state of Uttar
Pradesh for execution of arbitration awards.
The Hon'ble Supreme Court had called for a
report, which was submitted and after
perusing the report, the Supreme Court
observed that: -

"The statement, so placed before
this Court, shows a very sorry state of affairs
insofar as the disputes under the 1940 Act
and under the 1996 Act are concerned.
From the statement it appears that, 30,154
execution petitions are pending with various
District Courts/regular courts in the State of
U.P. and the oldest one is of the year 1981.
Similarly, in the Commercial Courts, in the
State of Uttar Pradesh, 13,367 execution
petitions/applications are reported to be
pending and the oldest one seems to be of
the year 2002."

15. The Hon'ble Supreme Court called
for a response from the Chief Justice of this
Court as to how this High Court proposes to
deal with the pendency of the execution
petitions / applications under Section 34 of
the 1996 Act at the earliest and within some
stipulated time period. The Chief Justice
was requested to constitute a special arrears
Committee of the judges of the High Court
and invite suggestions and formulate a
mechanism to tackle with the problem of
arrears.

16. The issue was addressed by this
Court and certain steps were taken.
Thereafter,
a
comparative
status
of
pendency of arbitration matters was placed
before the Hon'ble Supreme Court, which
was taken into consideration in an order
dated 21.01.2024 passed in the aforesaid
case, which indicated that pendency of
arbitration cases had reduced significantly
after this Court addressed the issue of delay
in disposal of execution cases relating to
arbitration award. The Hon'ble Supreme
Court expressed satisfaction with the steps
taken by this High Court and observed that
"The steps taken by the High Court and the
other courts may be continued in order to
bring about a further reduction in the
pendency of arbitration cases in Uttar
Pradesh.

17. The aforesaid direction of the
Hon'ble Supreme Court to continue efforts
to bring about reduction in pendency of
arbitration cases in Uttar Pradesh is to be
honoured by this Court as also by the
Commercial Court Lucknow.

18. Shri Indu Prakash Singh, learned
counsel for the respondent Nos.1 and 2
submitted that the petitioner is seeking
expeditious disposal of Case No. 831 of
2019, which is the application under Section
34 of the Arbitration and Conciliation Act
filed by the respondent No.1 and 2 only
whereas the other application - Arbitration
Case No. 133 of 2023 filed by the
respondent no. 3 is also pending in same
Court and it has also to be decided along
with Case No. 831 of 2019. Therefore, he
requests that in case a direction is issued for
expeditious disposal of Case No. 831 of
2019, the same should be issued in respect
of Arbitration Case No. 133 of 2023 also.

19. Shri Pankaj Srivastava, learned
counsel for the respondent No.3 Municipal
Corporation Meerut, has seriously opposed
5 All. M/s A2z Waste Management (Meerut) Pvt. Ltd. Vs. Construction & Design Services, U.P.
 & Ors.
547
the petition under Article 227 of the
Constitution of India. It is interesting to note
that the case which is sought to be expedited
by the petitioner and which is being opposed
by the respondent no. 3, has been filed by
the respondent nos. 1 and 2 for setting aside
an arbitration award passed in favour of the
petitioner and the respondent no. 3 is merely
a proforma respondent in this case.

20. The learned Counsel for the
respondent no. 3 has submitted that the
petition has been filed concealing the fact
that the proceedings of Case No. 831 of
2019 had been stayed by means of an order
dated 05.07.2021 passed by this Court
sitting at Allahabad in Transfer Application
(Civil) No.278 of 2021. Therefore, the
Commercial
Court
could
not
have
proceeded with the application under
Section
34
of
the
Arbitration
and
Conciliation
Act
till
the
Transfer
Application was finally decided by means of
the order dated 10.07.2023. He has
submitted that the petition is liable to be
dismissed as the petitioner has not
approached this Court with clean hands.

21. The respondent no. 3 has filed an
application under Section 340 Cr.P.C. read
with Article 215 of the Constitution of India
filed, which has been titled as 'Perjury
Application'. The prayer made in the
application is to prosecute and suitably
punish the petitioner and Sri Yuvraj Sharma
the deponent of the affidavit filed in support
of the petitioner under Article 227 of the
Constitution of India, for committing the
offence of perjury by suppressing true and
correct facts and swearing false affidavit
before this Court.

22. A perusal of the Arbitration award,
from which the proceedings under Section
34 of the Arbitration and Conciliation Act
arises, indicates that the petitioner had filed
an arbitration claim against the respondent
Nos.1, 2 and 3 in the year 2012/2013. The
arbitration award was passed on 29.05.2019
directing the respondents to pay amounts
under various heads to the petitioner,
aggregating to about Rs. 66 Crores, along
with 18 % Simple Interest per annum. The
liability of interest is increasing day by day
and the delay in final disposal of the matter
would not be in the interest of the
respondent no. 3 also, yet the respondent no.
3 is strongly opposing the petition filed for
seeking a direction of expeditious disposal
of the matter.

23.

Although
the
arbitration
proceedings were held at Lucknow, the
arbitration award was passed at Lucknow on
29.05.2019 and the respondent Nos.1 and 2
had filed an application under Section 34 of
Arbitration and Conciliation Act bearing
Arbitration Case No. 831 of 2019 in the
Commercial Court No. 2, Lucknow on
11.09.2019, the respondent No. 3 filed an
application under Section 34 of the
Arbitration
and
Conciliation
Act
challenging the same award before the
District Judge, Meerut on 05.10.2019.

24. Section 42 of Arbitration and
Conciliation Act provides that where with
respect to an arbitration agreement any
application under Part-I of the Act has been
made in a court, that court alone shall have
jurisdiction over the arbitral proceedings
and all subsequent applications arising out
of
that
agreement
and
the
arbitral
proceedings shall be made in that court and
in no other court. Apparently, after an
application under Section 34 of Arbitration
and Conciliation Act having been filed in
Commercial
Court
at
Lucknow
on
11.09.2019, no subsequent application
could be filed before any other court. Yet,
548 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent No.3 filed the application
under Section 34 of the Arbitration and
Conciliation Act at Meerut on 05.10.2019.

25. After expiry of about 1 year and 9
months since filing of the application at
Meerut, on 24.06.2021 the respondent no. 3
filed Transfer Application (Civil) No. 278 of
2021 before this Court at Allahabad for
transfer of the case from Meerut to
Lucknow.
An
interim
order
dated
05.07.2021 was passed in the Transfer
Application staying the proceedings of
application under Section 34 of Arbitration
and Conciliation Act filed at Meerut as also
the Arbitration Case No.831 of 2019 in the
Commercial Court at Lucknow.

26. When there is an arbitration award
operating against the respondent Nos.1 to 3,
all of whom are State Authorities and there
is an award for payment of interest at the rate
of 18 % on the awarded amount, the action
of the respondent No.3 in first filing an
application under Section 34 at Meerut,
whereas a previous application had already
been filed at Lucknow and the court at
Meerut had no jurisdiction in view of the
provision contained in Section 42 of
Arbitration and Conciliation Act, and
thereafter filing an application for transfer of
the case from Meerut to Lucknow after
about 1 year and 9 months and then getting
the proceedings under Section 34 pending at
Lucknow also stayed for over two years,
cannot be appreciated by the Court. This
approach is against the interest of justice as
also against the interests of the State, as any
delay in disposal of the application under
Section 34 of Arbitration and Conciliation
Act is in no way beneficial to the State. For
the same reason, the action of the respondent
No.3 in raising a serious objection and
opposing the petition under Article 227 of
the Constitution of India seeking a direction
for expeditious disposal of the proceedings
under Section 34 of Arbitration and
Conciliation
Act,
also
cannot
be
appreciated.

27. While opposing the petition, the
learned counsel for the respondent No.3 has
submitted
that
numerous
arbitration
proceedings were initiated by the petitioner
in respect of various contracts of similar
nature. In two other matters, proceedings
had been expedited by this Court and
thereafter the District Judge / Commercial
Court started fixing short dates in the matter
even though record of the arbitrator had not
been received and some orders were passed
in these matters, which were detrimental to
the interest of the respondents. He has
further submitted that the arbitrator's record
has been summoned by the Commercial
Court, Lucknow, which has not been
received till date. In response to a specific
query,
the
learned
Counsel
for
the
respondent no. 3 answered that the
respondent no. 3 is not a party to any such
proceedings in which the alleged orders
have been passed.

28. Merely because some other order
passed in some other petition for expeditious
disposal of this court has resulted in early
dates being fixed in some other proceedings
under Section 34 of the Arbitration and
Conciliation Act, wherein record has not
been received, cannot be a ground to decline
the prayer for expeditious disposal of
proceedings under Section 34 of Arbitration
and Conciliation Act in accordance with the
law.

29. Regarding the apprehension of the
learned Counsel for the respondent no. 3 that
in case the proceedings are expedited, the
Commercial Court will conclude the same
without receipt of the record of the arbitrator
5 All. M/s A2z Waste Management (Meerut) Pvt. Ltd. Vs. Construction & Design Services, U.P.
 & Ors.
549
and in violation of law, the Commercial
Court will be bound to decide the case in
accordance with the law only and this
apprehension cannot be a ground to decline
issuance of a direction for expeditious
disposal of the application under Section 34
of Arbitration and Conciliation Act, more
particularly when the direction would
certainly include a direction to the court to
proceed with the application "in accordance
with the law".

30. Keeping in view the aforesaid facts
and circumstances of the case, the petition
under Article 227 of the Constitution of
India is allowed. A direction is issued to the
learned Commercial Court No. 2, Lucknow
to proceed with Arbitration Case No. 831 of
2019 and Arbitration Case No. 133 of 2023
expeditiously
without
granting
any
unnecessary adjournments to any of the
parties, in accordance with law, particularly
keeping in view the provisions contained in
Section 34 (6) of the Arbitration and
Conciliation Act, the object of establishment
of
the
Commercial
Courts
and
the
provisions contained in Section 16 read with
Article 6 of the Schedule appended to the
Commercial Courts Act, 2015.

Order on Application filed
under 340 Cr.P.C. read with Article 215
of the Constitution of India: -

31. This is an application under
Section 340 Cr.P.C. read with Article 215 of
the Constitution of India filed by the
respondent No.3-Municipal Corporation
Meerut, which has been titled as 'Perjury
Application'. The prayer made in the
application is to prosecute and suitably
punish the petitioner and Shri Yuvraj
Sharma the deponent of the affidavit filed in
support of the application, for committing
offence of perjury by suppressing the fact
that the proceedings of Arbitration case No.
831 of 2019 had remained pending since
05.07.2021 till 10.07.2023.

32.

Before
commencement
of
submissions of this application Sri Jaideep
Narain Mathur Senior Advocate, stated that
the petitioner has committed an error in not
disclosing the fact of proceedings having
been stayed by this Court sitting at
Allahabad in the petition filed under Article
227 of the constitution of India and he
tenders unconditional apology for this
mistake. However, he stated that the
petitioner has disclosed the fact that the
respondent no. 3 had filed Transfer
Application (Civil) No. 278 of 2021 and he
has annexed a copy of the order dated
10.07.2023 passed in that case. He has
submitted that the mistake committed by the
petitioner, regarding which an unconditional
apology has been submitted, does not make
out a case for prosecution under Section 340
Cr.P.C. and in case the learned counsel for
respondent No. 3 agrees not to press this
application, precious time of this Court may
be saved so that it can be utilized for some
more fruitful purpose but the learned
counsel for respondent No.3 insisted that he
will establish that a case for prosecution of
the petitioner is made out and he would
press his application under Section 340
Cr.P.C. Therefore, the Court had to proceed
to hear submissions in support of the
application and against it also and to pass an
order thereon.

33. The learned Counsel for the
applicant submitted that Section 340 Cr.P.C.
makes a reference to offences referred to in
Clause B of sub-Section 1 of Section 195
Cr.P.C. Section 195 (1) (b) Cr.P.C. refers to
the offences under Section 193 to 196, 199,
200, 205 to 211, 228, 463, 471, 475 and 476.
550 INDIAN LAW REPORTS ALLAHABAD SERIES
He submitted that although he does not
defend the mistake of the petitioner in not
disclosing the complete facts before this
Court, the aforesaid omission does not in
any manner make out any of the offences
enumerated in Section 195 (1)(b) Cr.P.C.

34. The only ground on which the
application under Section 340 Cr.P.C. has
been filed is omission to disclose a stay
order that was operating for a period
05.07.2021 to 10.07.2023. The learned
Counsel for the respondent no. 3 has placed
reliance on the provisions contained in
Section 8 of the Oath's Act 1969, which
provides that "Every person giving evidence
on any subject before any court or person
hereby authorized to administer oaths and
affirmations shall be bound to state the truth
on such subject."

35. Learned counsel for respondent
No.3 has referred to Chapter4 Rule 17 of a
Allahabad High Court Rules 1952 which
provides as follows: -

"17. Oath or affirmation by
deponent :- The person administering an
oath or affirmation to the person making an
affidavit, shall follow the provisions of the
Indian Oaths Act, 1873.

The
following
forms
are
prescribed, namely--

Oath

I swear that this my declaration is
true; that it conceals nothing; and that no
part of it is false. So help me God.

Affirmation

I solemnly affirm that this my
declaration is true; that it conceals nothing;
and that no part of it is false."

36. However, the Oaths Act does not
contain any provision which may make a
person who omits to state the complete truth
liable to be prosecuted under Section 340.

37. The Court put a specific question to
the learned counsel for respondent No.2 as
to which of the offences enumerated under
Section 195 (1)(b) Cr.P.C. is made out from
the omission of the petitioner to disclose the
proceedings having remain stayed by means
of an stay order passed by this Court at
Allahabad, but the Learned counsel for
respondent No.3 could not point out any
single offence mentioned in Section 195
Cr.P.C. which attracted in the present case.

38. Section 191 I.P.C. provides as
follows:-

"Whoever, being legally bound by
an oath or by an express provision of law to
state the truth, or being bound by law to
make a declaration upon any subject, makes
any statement which is false, and which he
either knows or believes to be false or does
not believe to be true, is said to give false
evidence."

39. Section 191 makes 'making any
statement which is false'a punishable
offence. The learned counsel for respondent
No.3 had submitted that omitting to state
complete truth also amount to making a false
statement and, therefore, the omission of the
petitioner in not stating about the stay order
passed by this Court sitting at Allahabad,
amounts to making a false statement.

40. It is a well settled principle of
interpretation
of
statutes
that
while
interpreting a statute, the Court should give
plain and simple meaning to the words used
by the legislature and the Courts can neither
add any word nor subtract any word from
the words used by the legislature.
5 All. M/s A2z Waste Management (Meerut) Pvt. Ltd. Vs. Construction & Design Services, U.P.
 & Ors.
551

41. The penal laws are required to be
interpreted strictly. While interpreting a
penal provision, the Court cannot enlarge
the scope of the words used by the
legislature. When the legislature did not
make omission of stating any relevant fact to
be an offence under Section 191, the
petitioners cannot be punished for the
omission to disclose the stay order, which
omission would not affect the outcome of
this petition in any manner.

42. The learned Counsel for the
respondent no. 3 has relied upon the
decisions in the case of Dhananjay Sharma
Vs. State of Haryana and Others (1995) 3
SCC 757, S. P. Chengal Varaya Naidu Vs.
Jagannath and Others (1994) 1 SCC 1,
Hamza Haji Vs. State of Kerala (2006) 7
SCC 416, K. D. Sharma Vs. Steel
Authority of India Ltd. and Others (2008)
12 SCC 481 and ABCD Vs.Union of India
and Others (2020) 2 SCC 52.

43. In Dhananjay Sharma v. State of
Haryana, (1995) 3 SCC 757 it was held
that: -

"38. ... The swearing of false
affidavits in judicial proceedings not only
has the tendency of causing obstruction in
the due course of judicial proceedings but
has also the tendency to impede, obstruct
and interfere with the administration of
justice. The filing of false affidavits in
judicial proceedings in any court of law
exposes the intention of the party concerned
in perverting the course of justice. The due
process of law cannot be permitted to be
slighted nor the majesty of law be made a
mockery of by such acts or conduct on the
part of the parties to the litigation or even
while appearing as witnesses. Anyone who
makes an attempt to impede or undermine or
obstruct the free flow of the unsoiled stream
of justice by resorting to the filing of false
evidence, commits criminal contempt of the
court and renders himself liable to be dealt
with in accordance with the Act. Filing of
false affidavits or making false statement on
oath in courts aims at striking a blow at the
rule of law and no court can ignore such
conduct which has the tendency to shake
public confidence in the judicial institutions
because the very structure of an ordered life
is put at stake. It would be a great public
disaster if the fountain of justice is allowed
to be poisoned by anyone resorting to filing
of false affidavits or giving of false
statements and fabricating false evidence in
a court of law. The stream of justice has to
be kept clear and pure and anyone soiling
its purity must be dealt with sternly so that
the message percolates loud and clear that
no one can be permitted to undermine the
dignity of the court and interfere with the
due course of judicial proceedings or the
administration of justice...."

44. In S. P. Chengalvaraya Naidu v.
Jagannath, (1994) 1 SCC 1, the Hon'ble
Supreme Court held that: -

"1.Fraud avoids all judicial acts,
ecclesiastical or temporal" observed Chief
Justice Edward Coke of England about
three centuries ago. It is the settled
proposition of law that a judgment or decree
obtained by playing fraud on the court is a
nullity and non est in the eyes of law. Such a
judgment/decree - by the first court or by
the highest court - has to be treated as a
nullity by every court, whether superior or
inferior. It can be challenged in any court
even in collateral proceedings.
* * *

5...The courts of law are meant
for imparting justice between the parties.
One who comes to the court, must come with
clean hands. We are constrained to say that
552 INDIAN LAW REPORTS ALLAHABAD SERIES
more often than not, process of the court is
being
abused.
Property-grabbers,
tax

evaders, bank-loan-dodgers and other
unscrupulous persons from all walks of life
find the court-process a convenient lever to
retain the illegal gains indefinitely. We have
no hesitation to say that a person, who's
case is based on falsehood, has no right to
approach the court. He can be summarily
thrown out at any stage of the litigation."

45. S. P. Chengalvaraya Naidu
(Supra) was followed in Hamza Haji Vs.
State of Kerala (Supra).

46. In K.D. Sharma v. SAIL, (2008)
12 SCC 481, it was reiterated that: -

"34.
The
jurisdiction
of
the
Supreme Court under Article 32 and of the
High Court under Article 226 of the
Constitution is extraordinary, equitable and
discretionary. Prerogative writs mentioned
therein are issued for doing substantial
justice. It is, therefore, of utmost necessity that
the petitioner approaching the writ court must
come with clean hands, put forward all the
facts before the court without concealing or
suppressing anything and seek an appropriate
relief. If there is no candid disclosure of
relevant and material facts or the petitioner is
guilty of misleading the court, his petition may
be dismissed at the threshold without
considering the merits of the claim."

47. S. P. Chengalvaraya Naidu
(Supra) was followed in Hamza Haji Vs.
State of Kerala (Supra). The Hon'ble
Supreme Court did not discuss the
provisions of Section 340 Cr.P.C. or Article
215 of the Constitution of India in any of the
aforesaid cases.

48. In ABCD v. Union of India,
(2020) 2 SCC 52, it was held that: -

"15. Making a false statement on
oath is an offence punishable under Section
181 of the IPC while furnishing false
information with intent to cause public
servant to use his lawful power to the injury
of another person is punishable under
Section 182 IPC. These offences by virtue of
Section 195(1)(a)(i) of the Code can be
taken cognizance of by any court only upon
a proper complaint in writing as stated in
said section."

49. In none of the cases cited by the
learned Counsel for the respondent no. 3, an
order for prosecution under Section 340
Cr.P.C. was passed. It is settled law that a
judgment is an authority for what it actually
decides and not for what can be deduced
from it. In a Constitution Bench judgment in
the case of P. S. Sathappan v. Andhra
Bank Ltd., (2004) 11 SCC 672, it was held
that:-

"118. ...It is well known that a
judgment is an authority for what it decides
and not what may even logically be deduced
therefrom.

* * *

144. While analysing different
decisions rendered by this Court, an attempt
has been made to read the judgments as
should be read under the rule of precedents.
A decision, it is trite, should not be read as
a statute.
#

145. A decision is an authority for
the questions of law determined by it. While
applying the ratio, the court may not pick
out a word or a sentence from the judgment
divorced from the context in which the said
question
arose
for
consideration.
A
judgment, as is well known, must be read in
its entirety and the observations made
5 All. M/s A2z Waste Management (Meerut) Pvt. Ltd. Vs. Construction & Design Services, U.P.
 & Ors.
553
therein should receive consideration in the
light of the questions raised before it. [See
Haryana Financial Corpn. v. Jagdamba Oil
Mills (2002)
3 SCC 496,
Union
of
India v. Dhanwanti Devi (1996) 6 SCC 44,
Nalini Mahajan (Dr.) v. Director of Income
Tax
(Investigation) (2002)
257
ITR
123 (Del) State of U.P. v. Synthetics and
Chemicals Ltd. (1991) 4 SCC 139, A-One
Granites v. State of U.P. (2001) 3 SCC 537,
and
Bhavnagar University v. Palitana
Sugar Mill (P) Ltd. (2003) 2 SCC 111],

146. Although
decisions
are
galore on this point, we may refer to a recent
one in State of Gujarat v. Akhil Gujarat
Pravasi V.S. Mahamandal (2004) 5 SCC
155, wherein this Court held:

"It is trite that any observation
made during the course of reasoning in a
judgment should not be read divorced from
the context in which it was used."

147. It is further well settled that a
decision is not an authority for the
proposition which did not fall for its
consideration."

50. Again, in Amrendra Pratap
Singh
versus
Tej
Bahadur
Prajapati: (2004) 10 SCC 65, the Hon'ble
Supreme Court reiterated that:-

"A
judicial
decision
is
an
authority for what it actually decides and
not for what can be read into it by
implication or by assigning an assumed
intention to the judges, and inferring from it
a proposition of law which the judges have
not
specifically
laid
down
in
the
pronouncement."

51.

Learned
Senior
Advocate
appearing for the petitioner has placed
reliance upon the judgment of the Hon'ble
Supreme Court in case of Sasikala Pushpa
and Others Vs. State of Tamil Nadu
(2019) 6 SCC 477, wherein the Hon'ble
Supreme Court held that:-

"10. It is fairly well settled that
before lodging of the complaint, it is
necessary that the court must be satisfied
that it was expedient in the interest of justice
to lodge the complaint. It is not necessary
that the court must use the actual words of
Section 340 CrPC; but the court should
record a finding indicating its satisfaction
that it is expedient in the interest of justice
that an enquiry should be made. Observing
that
under
Section
340
CrPC,
the
prosecution is to be launched only if it is
expedient in the interest of justice and not on
mere allegations or to vindicate personal
vendetta. In Iqbal Singh Marwah v.
Meenakshi Marwah (2005) 4 SCC 370, this
Court held as under:

"23. In view of the language used
in Section 340 CrPC the court is not bound
to make a complaint regarding commission
of an offence referred to in Section
195(1)(b), as the section is conditioned by
the words 'court is of opinion that it is
expedient in the interests of justice'. This
shows that such a course will be adopted
only if the interest of justice requires and not
in every case.