Calcutta High Court
Represented Through The Sr. Div. ... vs M/S. Premco Rail Engineers Ltd on 11 December, 2018
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1
OD-4
AP 707 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
UNION OF INDIA
REPRESENTED THROUGH THE SR. DIV. ELECTRICAL ENGINEER (TRD)
VERSUS
M/S. PREMCO RAIL ENGINEERS LTD.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 11th December, 2018.
Appearance:
Ms. Sima Sengupta, Adv.
...for the petitioner.
Mr. N. Thakur, Adv.
...for the respondent.
The Court : This is an application under Section 34 of the Arbitration & Conciliation Act, 1996, as amended by Act 3 of 2016 (in short, "the Act of 1996"), at the instance of the Union of India represented through the General Manager, South-eastern Railway for setting aside of the award dated June 4, 2018 made by the sole Arbitrator.
This application has been filed beyond the period of 90 days from the date of receipt of the award but within the period of further 30 days.
Considering the averments made in the application, I find that the petitioner has sufficiently explained the facts, which 2 prevented it from filing this application within the statutory period of 90 days. Thus, in view of the Proviso to sub- section(3) of Section 34 of the Act of 1996, the delay in filing this application is condoned. The application, AP No.707 of 2018 is admitted.
The petitioner has also prayed for stay of operation of the impugned award made by the learned Arbitrator, directing various payments to be made by the petitioner to the respondent herein, the claimant in the arbitration. The Proviso to sub-Section(3) of Section 36 of the Act of 1996 which has come into effect from October 25, 2015 provides that while considering any prayer for stay of operation of an arbitral award directing payment of money, the Court shall have due regard to the provisions of the Code of Civil Procedure, 1908 (in short, "the Code") for stay of operation of a money decree. As per sub-rule (5) of Rule 5 of Order XLI of the Code, in order to obtain stay of operation of a money decree by the trial Court, the appellant - judgment debtor has to either deposit the amount decreed or secure the said amount. However, in view of the provisions contained in Order XXVII Rule 8A of the Code, the present petitioner being Union of India is not required to fulfil the stipulation provided in the Proviso to sub-section (3) of Section 36 of the Act of 1996. This view is supported by the judgment dated September 5, 2018 passed by this Court in GA No.1903 of 2018 with AP No.1121 of 3 2016. The Special Leave Petition, being SLP(C) No.25765 of 2018 filed against the said judgment dated September 5, 2018 has been rejected by the Supreme Court on December 3, 2018.
For the reasons as aforesaid, the petitioner being Union of India is entitled to obtain unconditional stay of operation of the award dated June 4, 2018.
Accordingly, the operation of the impugned award dated June 4, 2018 made by the learned Arbitrator shall remain stayed till disposal of the application, AP no.707 of 2018.
Let the application, AP No.707 of 2018 appear in the monthly list of March, 2019, under the heading 'For Hearing'. The petitioner shall file requisite number of informal paper books disclosing therein, all the records of the arbitral proceeding. Such paper books shall be filed within the month of February 2019, upon service of the same on the respondent.
Urgent certified website copies of this order, if applied for, be made available to the parties subject to compliance with all requisite formalities.
(ASHIS KUMAR CHAKRABORTY, J.) s.pal