Decided on August 09,2007

R S B PROJECT LTD Respondents


- (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 as under: "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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