NORTH EASTERN ELECTRIC POWER CORPORATION LTD Vs. ASTRA CONSTRUCTION PVT. LTD

JUDGEMENT

(1.) The brief facts of the case are that on 5/6/2015, an arbitral award was passed in favour of the respondent, to which the petitioner filed an application under Sec. 34 before the learned Commercial Court on 31/8/2015, for setting aside the said award. Seven years after the passing of the award, the respondent on 14/12/2022, filed for execution of the award before the Commercial Court. The maintainability of the petition for execution was raised by the petitioner on the ground that when the application under Sec. 34 had been filed on 31/8/2015, the position of law existing then, as per the un-amended A&C Act, of 1996 was that an automatic stay of the award under challenge, immediately came into operation. It was contended that though subsequent amendments had done away with the automatic stay rule, however, the same would apply only prospectively and the petitioner could not be divested of the benefit of automatic stay, which had accrued to it as far back as on 31/8/2015. The learned Commercial Court by the first impugned order dtd. 15/3/2023, rejected the challenge to maintainability raised by the petitioner, who then on the same day itself, filed another application under Sec. 34 read with Sec. 36 of the A&C Act, 1996 for stay of the award. Thereafter, another petition on 23/3/2023 under Order 21 Rule 28 read with Sec. 47 of the CPC, was filed by the petitioner for stay of the execution proceedings in the Execution Case. Both these applications dtd. 15/3/2023 and 23/3/2023, were then rejected by order dtd. 30/5/2023 by the learned Commercial Court. As such, these two impugned orders dtd. 15/3/2023 and 30/5/2023 have now come to be challenged before this Court by way of the instant application under Article 227 of the Constitution of India.

(2.) At the outset, the respondent counsel Mr. P. Jain, has raised preliminary objections on the ground that the present petition is premature, as the application for stay sought by the petitioner is yet to be decided finally by the learned Commercial Court, and as such there is no cause of action, let alone any grounds for interference under Article 227 of the Constitution of India. It has also been contended that the petitioner, has not established as to how the present common petition is maintainable against first, the impugned order dtd. 15/3/2023 passed in deciding the maintainability of the petition under Sec. 36 of the A&C Act, 1996 and secondly, against the order dtd. 30/5/2023 passed in the two applications filed under Order 21 Rule 29 read with Sec. 47 CPC and Sec. 36 read with Sec. 34 respectively, seeking stay of the Execution proceedings and the Arbitral Award. No pleadings are present it is asserted, or any explanation offered as to how orders passed under A&C Act could be challenged under Article 227 as in any case, orders arising out of Sec. 34 or related thereto, would lie exclusively under the A&C Act.

(3.) It has also been submitted that the application of the petitioner under Sec. 36 is yet to be decided, and the deposit as directed by the learned Commercial Court, is in accordance with the law laid down by the Supreme Court mandating 100% deposit as the standard rule in case of execution of arbitral awards. In this context, reliance has been placed upon the cases of (i) Toyo Engineering Corporation Vs. Indian Oil 2021 SCC Online SC 3455 (ii) SREI Infrastructure Finance Ltd. Vs. Candor Gurgaon Two Developers and Projects Pvt. Ltd, SLP (C) Nos. 20895-20897/2018 and (iii) Manish Vs. Godawari Marthawada Irrigation Development Corp. SLP(C) No(s). 11760-11761/2018.