Calcutta High Court (Appellete Side)
Efcalon Tie-Up Pvt. Ltd vs Star Track Agency Pvt. Ltd on 26 March, 2019
1
4
26-03-2019
RVW 59 of 2019
(CAN 2775 of 2019)
sg
in
Ct. 37 FMA 33 of 2019
With
FMA 71 of 2019
Efcalon Tie-Up Pvt. Ltd.
Versus
Star Track Agency Pvt. Ltd.
Mr. Sabyasachi Chaudhury, Adv.
Mr. Anuj Singh, Adv.
Mr. Rajesh Upadhyay, Adv.
Mr. Abhishek Nag, Adv.
...for the appellant
Mr. Debasish Kundu, Sr. Adv.
Mr. Amritam Mandal, Adv.
...for the respondent
Leave is given to the appellant to remove the defect in course of the day.
This is an application for review of an order passed on 25th February, 2019 by which we requested the Additional District Judge, 13th Court, Alipore, South 24-Parganas to dispose of the application under Section 36(2) of the Arbitration and Conciliation Act, 1996 afresh and on merits within two weeks from the date of communication of this order. On the date when the order was passed, the order passed in Misc. Case No. 06 of 2018 was not before us. We proceeded on the basis of oral submission made on behalf of the parties.
Mr. Kundu, learned Senior Counsel for the respondent submits that the learned Trial Court has dismissed the application as the respondent was unable to produce the copy of the order dated 22nd February, 2019. It appears from the order dated 22nd February, 2019 that the learned Additional District Judge, 13th Court, Alipore was not possibly shown the order dated 21st February, 2019. However, the effect of the said order is taken care of in the ordering 2 portion of the order No. 14 dated 22nd February, 2019 where the learned Additional District Judge, 13th Court, Alipore has directed the Misc. Case and the arbitration execution case to be fixed on the same date for its hearing and both cases were disposed of simultaneously.
In the order dated 21st February, 2019, Justice Sabyasachi Bhattacharyya has passed, inter alia, the following order:
"Upon hearing learned counsel for both sides, it appears that the facts of pendency of proceedings under Section 34 and Section 36(2) of the 1996 Act were not within the notice of this Court when the order dated November 28, 2018 was passed. In the event the said facts were within the notice of this Court, in all probability the direction passed would have been different.
As such, the order dated November 28, 2018 is modified to the extent that the Additional District Judge, Thirteenth Court at Alipore, District- South 24-Parganas, will dispose of Execution Case No.299 of 2018, as expeditiously as the business of the said court permits, subject to any order passed in the proceeding under Section 34 of the 1996 Act and/or the application under Section 36(2) of the said Act of 1996."
In view of the submission made on behalf of the appellant that they would not proceed with the execution case, it, in fact, takes care of the anxiety of the respondent that the award may be put to execution immediately. There is no necessity now to direct the Additional District Judge, 13th Court, Alipore to consider the application under Section 36(2) of the Arbitration and Conciliation Act afresh. In any event, on the face of the order dated 21st February, 2019, no such direction could have been passed by us as the order dated 21st February, 2019 was not before us and the same 3 was not under challenge before us.
Accordingly, the sentence "We request the Additional District Judge, 13th Court, Alipore, South 24-Parganas to dispose of the application under Section 36(2) of the Arbitration and Conciliation Act, 1996 afresh and on merits within two weeks from the date of communication of this order and thereafter dispose of the application for setting aside of the award preferably within four months without granting any unnecessary adjournment to either of the parties" stands deleted.
However, we request the learned Additional District Judge to dispose of the Misc. Case No. 06 of 2018 preferably within a period of four months from the date of communication of this order without granting any unnecessary adjournment to either of the parties.
It is needless to mention that the appellant shall not execute the award until the disposal of the application for setting aside of the award. In the event, the award is upheld, the learned Trial Court may immediately take up the execution petition.
RVW 59 of 2019 along with CAN 2775 of 2019 is accordingly disposed of. Subsequently, FMA 33 of 2019 and FMA 71 of 2019 are also disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.
(Ravi Krishan Kapur, J.) (Soumen Sen, J.)