NATIONAL HIGHWAY AUTHORITY OF INDIA Vs. R S B PROJECT LTD
HIGH COURT OF DELHI
NATIONAL HIGHWAY AUTHORITY OF INDIA
R S B PROJECT LTD
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(1.) Heard. For the reasons stated in the application which is supported by
an affidavit, delay in the filing of this appeal is condoned. The application
is allowed and disposed of.
Section 36 of the Arbitration and Conciliation Act, 1996 provides for the
enforcement of an Award as if it were a decree under the Code of Civil
Procedure, 1908 provided the time for making an application for setting aside
the Award under Section 34 has expired or such an application having been made,
the same has been refused. The appellant has, in the present case, suffered an
Award at the hands of a three member Arbitral Tribunal. It has filed an
application under Section 34 of the Act aforementioned for setting aside the
said Award. While the said application was pending before a Single Judge of this
Court, an order dated 03.03.2006 was passed the relevant portion whereof reads
"The matter was passed over once at the request of the learned counsel for the
plaintiff on the ground that the senior counsel is leading in the matter. On
the second call it is stated that the learned senior counsel is not to appear
today and the learned counsel for the petitioner is not in a position to proceed
with the matter.
Notice was issued in the matter on 24.8.2005. Proceedings are under
Section 34 of the Arbitration and Conciliation Act, 1996 and the consequence of
the issuance of notice is that there is stay of execution of the award.
In view of the aforesaid it would be appropriate to recall the notice
issued on 24.8.2005 making it clear that it would be open to the respondent to
execute the award.
List on 4.7.2006 in the category of short cause matters."
(2.) Aggrieved the appellant has filed the present appeal to contend that
recall of the notice issued on an application under Section 34 was neither
envisaged under the provisions of the Act nor was it material for purposes of
Section 36. It was argued by Mr. Sethi appearing for the appellant and in our
opinion rightly so that the enforceability of the award gets suspended no sooner
an application under Section 34 is filed regardless whether a notice on that
application has or has not been issued. By recalling the Notice under Sec. 34
of the Act, the learned Single Judge could not, according to Mr. Sethi,
obliterate the fact of filing of the application which is what is important for
purposes of Section 36. The fact that the application under Section 34 filed by
the appellant has been presented and is pending before the Court for
adjudication, not being in dispute to the award could not be executed in the
teeth of Section 36 of the Act.
(3.) Learned counsel for the respondent submitted that the execution
petition filed by the respondent which was permitted to go on in terms of the
impugned order has itself been dismissed as withdrawn by the executing court
concerned. He submits that in the light of that subsequent development also,
the entire issue has been rendered academic.;
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