Shabihul Hasnain, J. - (1.) HEARD Sri G.S. Nigam, learned Counsel for the Appellant.
(2.) ISSUE notice to the Respondent. Case of the Appellant is that he had approached the District Judge under Section 34 of the Arbitration and Conciliation Act, 1996. The award was made ex -parte on 9.1.2001. The Appellant claimed that he came to know about the award on 5.3.2002. The District Judge passed an order on 12.5.2010 awarding the cost of Rs. 50,000/ -against the Petitioner and in case of default by a subsequent order dated 3.11.2010 the suit of the Appellant has been dismissed for non -payment. He says that the appeal was filed with an application for condonation of delay under Section 5 of Limitation Act. The delay, if any, was sufficiently explained. There was no occasion to impose cost of Rs. 50,000/ -against the award which amounted only Rs. 50,000/ -without interest.
(3.) THE argument of Appellant counsel carries weight. He has relied on the judgment of Hon'ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005 (23) LCD 1250. Their Lordships in this case in paragraph 38 have held as under: 38: Section 35 of the Code deals with the award of cost and Section 35 -A with award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of award of cost and compensation. Under Section 95 cost can be awarded upto Rs. 50,000/ -and under Section 35 -A, the costs awardable are upto to Rs. 3,000/ -. Section 35 -B provides for award of cost for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In circumstances mentioned in Section 35 -B an order may be made requiring the defaulting party to pay to other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the cost shall follow the event and if not, reasons thereof shall be stated. The award of the cost of the suit is in the discretion of the Court. In Section 35 and 35 -B, there is no upper limit of amount of cost awardable. The Court is convinced that the cost of Rs. 50000/ - was highly excessive and exorbitant.;