UNION OF INDIA AND ANR Vs. DURGA KRISHNA STORE PVT LTD
LAWS(GAU)-2018-5-136
HIGH COURT OF GAUHATI
Decided on May 31,2018

Union Of India And Anr Appellant
VERSUS
Durga Krishna Store Pvt Ltd Respondents

JUDGEMENT

Manojit Bhuyan, J. - (1.) Heard Mrs. U. Chakraborty, learned counsel for the appellants as well as Mr. R. Hussain, learned counsel representing the sole respondent.
(2.) This arbitration appeal is directed against the order dated 29.11.2017 passed by the Additional Sessions Judge, No.IV, FTC, Kamrup(M), Guwahati in Misc. (Arb) Case No.2/17 dismissing the said case on the basis of preliminary objection raised by the sole respondent herein under Section 34(5) of the Arbitration and Conciliation Act, 1996.
(3.) Relevant dates to be noticed are that on 06.12.2011 the appellants had issued Tender for execution of earth work for Railway embankment and construction of minor bridge etc. in connection with construction of the new Broad Gauge line from New Mainaguri (West Bengal) to Jogighopa (Assam). The sole respondent was awarded with the contract. Differences arose and on 09.04.2014, at the instance of this Hon'ble Court, Arbitrator was appointed and the said Arbitrator accepted the responsibility and entered into the Arbitration on 10.05.2014 for settlement of the disputes between the parties. The arbitration proceedings could not commence rightaway as the appellants had filed a Special Leave Petition before the Supreme Court against the order dated 09.04.2014 which, however, was dismissed on 28.11.2014. Arbitration proceedings thereafter commenced and Arbitral Award was passed on 04.10.2016. On 03.01.2017, the appellants filed application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the Arbitral Award dated 04.10.2016, confining the challenge only in respect of Claim Nos.1, 2, 7 and 8. The said application filed before the Court of the Additional Sessions Judge, No.IV, FTC, Kamrup (M) was registered and numbered as Misc.(Arb) Case No.2/17. Notice in the case was issued and the sole respondent, on making appearance, raised a preliminary objection to the effect that the application filed under Section 34 of the Act by the appellants was not maintainable as prior to filing of the application the appellants did not comply with the mandatory requirement as enjoined in Section 34(5) of the aforesaid Act. The preliminary objection was accepted by the court below and accordingly the application under Section 34 filed by the appellants was dismissed. The court below also observed that before filing an application under Section 34 of the Act, it is mandatory on the part of the party concerned to issue notice to the other party informing the intention to file petition under Section 34 of the Act. The court below also observed that the apology sought for by the appellants for not adhering to the provisions of law was not sufficient to condone or to subvert the process of law.;


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