KRISHNA MURARI, J. - (1.) THIS civil revision is directed against the order dated 26.3.2010 passed by the District Judge, Ghaziabad in Execution Case no. 43 of 2004 for enforcement of arbitral award dated 11.12.2003 passed by Arbitral Tribunal under Arbitration and Conciliation Act, 1996.
(2.) HEARD Sri Ravi Kant, learned Senior Advocate, assisted by Sri Tarun Agrawal, Advocate for the applicant and Sri Navin Sinha, learned Senior Advocate, assisted by Sri Anurag Khanna, Advocate for the respondent. The question which arises for consideration is whether the validity of arbitral award can be challenged in proceeding for its enforcement under Section 36 of the Arbitration and Conciliation Act, 1996 (herein after referred to as the ''Act') taking recourse to section 47 C.P.C.
(3.) SHORN of unnecessary details, the facts relevant for the purpose of the case are as under : An agreement dated 1.7.1998 was entered into between the applicant and respondent for construction of three Blocks of medical college. Clause 33 of the agreement provided for arbitration clause. It further provided that in case of dispute between the parties, the same shall be referred by the appointing authority (to be appointed by the employer-trust) for adjudication by a sole arbitrator. A dispute arose between the parties. The appointing authority in terms of Clause 33 of the agreement proposed a panel of three persons, out of which one Mr. Justice Rama Moorthy (Retd.) was appointed as sole arbitrator with the consent of both the parties. He entered upon the reference and vide order dated 27.9.2001 fixed time schedule for completion of pleadings by the parties. During the pendency of the proceedings, the respondent made a representation under Sections 12 and 13 of the Act raising a challenge to the continuance of the Arbitrator. The appointing authority issued a letter dated 28.8.2003 again asking the applicant to agree for appointment of substitute arbitrator and suggested three names. The applicant vide his letter dated 3.9.2003 refused to select any of the names suggested by the appointing authority. Thereafter, the appointing authority in terms of the arbitration clause vide letter dated 19.9.2003 appointed Sri K. S. Baidwan as sole arbitrator. The applicant raised objection before the substitute arbitrator but he proceeded with the proceedings and gave the award on 11.12.2003. The applicant filed a petition under Section 34 of the Act for setting the arbitral award before the Delhi High Court. Vide order dated 5.7.2005, Delhi High Court finding that it had no territorial jurisdiction to hear the petition on the ground that parties in their agreement agreed that Courts at Ghaziabad will only have jurisdiction directed return of the same. The petition was returned to the applicant on 30.7.2005. The applicant again moved an application under Section 34 of the Act before the District Court at Ghaziabad along with an application for condonation of delay under Section 14 of the Limitation Act. The District Judge, Ghaziabad vide judgment and order dated 14.12.2007 rejected the application for condonation of delay and as a result, the application under section 34 of the Act also stood dismissed. The order was challenged before this Court by filing First Appeal From Order no. 295 of 2009, which was dismissed on 31.3.2009. The order passed by this Court was affirmed by Hon'ble Apex Court as the SLP filed by the applicant was dismissed vide judgment dated 22.7.2009. The award was put into execution. The applicant again raised objection under Section 47 read with section 151 C.P.C.. The District Judge vide impugned judgment and order dated 26.3.2010 dismissed the objection on the ground that earlier order rejecting the application under Section 34 of the Act will operate as res-judicata and hence objection filed under Section 47 C.P.C. was not maintainable. ;