SHAHIN SHAH vs GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar S

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SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar S. 5---Condonation of delay---Scope---Party must explain each day of delay and, the Court ought to adjudge whether each day of delay has been sufficiently explained to the satisfaction of the Court with evidence---If such discretion has been exercised properly, then, an appellate Court cannot arbitrarily disregard the reasons so given by the Trial Court while discounting the reasons provided by one party in an application for condonation of delay by the Trial Court unless there is misreading or non-reading of the record. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar Preamble---Rules of Reconciliation and Arbitration of International Chamber of Commerce ('the ICC Rules), Art. 21---ICC Rules do not divest the Courts in Pakistan of their jurisdiction in arbitration matters. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar Scope---Doctrine of substantial compliance provides that the procedural fault in complying strictly with a provision of the law is so minor that it does not have a bearing on the essence of the dispute and the object sought to be achieved---Applicability of the 'doctrine of substantial compliance' depends on the facts and circumstances of a dispute---Court has to determine whether the object, purpose, and intent of a statutory prerequisite have been fulfilled and, formal compliance with the same would be unimportant. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar Preamble---Duty of Court in arbitration matters---Scope---Once a party has agreed to arbitration, it should be the Court's responsibility to either facilitate the said party in the arbitration while staying within the confines of the Arbitration Act, 1940 or, to compel the party to abide by the terms and conditions of a contract---Purpose of arbitration is defeated if a party refuses to abide by the agreed mode of dispute resolution---Such a trend must not be encouraged. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar S. 14---award to be signed and filed---Notice under section 14 of the arbitration act, 1940---Scope---When an award is filed by the arbitrator in Court in the presence of the parties or their authorized agents then the requirements of section 14 qua serving of notice of signing and making of the award are substantially met---Where the parties are present in Court when the arbitration award is filed, issuance of formal notice under section 14 of the act, is a mere technicality which cannot vitiate the proceedings. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar Ss. 17 & 39---arbitration award made Rule of Court---Composite order of Trial Court---Scope---Whether order of Trial Court making the arbitration award Rule of Court was appealable before the High Court---Held, that respondents were aggrieved of a "composite order" passed by the Trial Court, whereby the objections filed by the Respondents were dismissed as being time barred and the arbitration award was made Rule of Court---Word "composite" meant that the order was comprised of two distinct elements or parts---When the High Court found that the order of the Trial Court had two distinct parts, then, it had to examine whether the respondents had challenged both parts of the order independently by raising independent grounds in terms of section 17 & section 39 of the arbitration act, 1940 ('act')---High Court could not have suo motu implied that such grounds had been taken---High Court was required to proceed on the basis of record which clearly showed that the respondents had nowhere taken the stance that the decree of the Trial Court was in excess of or against the arbitration award---as such, the High Court could not have assumed jurisdiction in the matter, especially when the respondents did not question the decree on the grounds mentioned in section 17 of the act---Even otherwise, the failure of the respondents to agitate the grounds mentioned in section 17 before the Trial Court barred them from raising any such grounds before the High Court since the respondent was appealing against the judgment of the Trial Court---Respondents were to show that the judgment of the Trial Court was hit by any of the grounds available under section 17 which they failed to do---High Court erred in law and exceeded its jurisdiction in proceeding beyond the grounds agitated by the respondent in its appeal---appeal was allowed and award rendered by the arbitrators was made Rule of the Court. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar S. 30(a)---Arbitration Award, filing of---Whether Arbitrators committed misconduct by not filing Award within time---Held, that the Trial Court gave the Arbitrators multiple extensions in time to file the Arbitration Award---Both the parties i.e. appellant and respondents were present at the time when the Arbitrators sought extensions of time to file the Award---Nothing was present on the record to show that the respondent's counsel objected to any extension in filing the Award---As such, the plea that the Arbitrators committed misconduct and should have filed the Award within four months was totally misconceived---Respondents participated in the arbitration proceedings despite extensions without raising an objection whatsoever---Minutes of the arbitration proceedings categorically mentioned that the respondents "expressed their confidence" in the nominated Arbitrators---Time limit of filing an Arbitration Award within four months is not absolute---Section 28 of the Arbitration Act, 1940 clearly provides that said time limit can be enlarged---As such, the non-filing of an Award within four months does not ipso facto make the Award invalid---In the present case the time limit mentioned in section 28 of the Act was enlarged by orders of the Trial Court in presence of the parties and even otherwise the respondents by willingly and voluntarily participating in the proceedings held during extended periods had waved their right to object---Fact that the Award was filed after expiry of the four-month period was not fatal---Trial Court, therefore, judicially scrutinized the record by applying its mind to the facts and circumstances of the case---Appeal was allowed and Award rendered by the Arbitrators was made Rule of the Court. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar art. 178---arbitration award---Filing in Court---Limitation---Scope---Limitation period of 90 days mentioned under article 178 of the Limitation act, 1908 applies to parties to an arbitration agreement who have been given notice of making of the award and not to the arbitrator(s)---arbitrator(s) must be requested by the parties to file the arbitration award or must be given a direction by the Court to do so. Head NotesCase Description Citation Name: 2022 SCMR 1810 SUPREME-COURTBookmark this Case SHAHIN SHAH VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar S. 30---Grounds for setting aside an Award---Court cannot reappraise the evidence relied upon by the Arbitrator(s) and engage in a roving inquiry to discover infirmities in the Arbitration Award---Illegality or infirmity in the Arbitration Award must be apparent on the face of the Award---Court is required to examine the Arbitration Award filed in Court to see whether there is an infirmity within the Award itself. Head NotesCase Description

SHAHIN SHAH vs GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Irrigation Department, Peshawar S — 2022 SCMR 1810 SUPREME-COURT

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