SUJAY ENTERPRISES REP. BY ITS PROPRIETOR Vs. AIR PORT AUTHORITY OF INDIA BANGALORE INTERNATIONAL AIRPORT LTD. REP. BY ITS AIRPORT DIRECTOR

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 07.03.2011 passed on I.A. No. 1 in A.S. No. 26/2004, by the learned City Civil and Sessions Judge, Bangalore. The instant case has a chequered history. A Hon'ble Division Bench of this Court in W.A. No. 4020/2000 by its order dated 20.08.2001, had held the petitioner herein to be due certain amount to the respondent herein. Alleging disobedience of the said order, the respondent herein filed contempt petition against the petitioner herein in CCC (Civil) No. 3062/2001. Prior to this, the petitioner had approached the Hon'ble Supreme Court in Appeal (Civil) No. 20959/2001 against the order passed in the writ appeal. While disposing the appeal, the Hon'ble Supreme Court had granted leave to the petitioner herein to approach the Division Bench of this Court to seek modification of the order. Accordingly, the petitioner herein had filed an application but before the same was taken up for consideration, the said contempt petition arose for consideration. Though charge was framed in the contempt petition by the order dated 03.12.2002, it was recalled and as per the understanding reached between the parties, the question with regard to the liability was agreed to be referred to a former Judge of this Court as the Sole Arbitrator. It was also agreed between the parties that the challenge to the award to be passed by the Arbitrator as provided under the provisions of the Arbitration and Conciliation Act, 1996 (for short the Act') would be made in the contempt proceedings which remained pending. The said understanding was made a part of the order and the contempt proceedings was adjourned.

(2.) THE parties accordingly went through the arbitration proceedings and the learned Arbitrator passed the award on 07.03.2004. Since, the petitioner herein was held to be due the amount awarded therein, the petitioner claiming to be aggrieved by the arbitral award filed an application under Section 34 of Act before the City Civil Court in A.S. No. 26/2004 on 05.06.2004. Another application under Section 34 of the Act was also filed on the same day in the contempt petition in CCC (Civil) No. 3062/2001 However, the petitioner herein thereafter filed an application in A.S. No. 26/2004 and sought dismissal of the same, which was accordingly dismissed on 11.08.2004. Subsequently, the contempt petition in CCC (Civil) No. 3062/2001 was taken up for consideration in its usual course. By adverting only to the contention as to whether there was willful default, the Division Bench (to which I was a member) disposed of CCC (Civil) No. 3062/2001 on 07.08.2006. However, the application filed by the petitioner under Section 34 of the Act was not a part of the consideration therein, nor did the petitioner herein seek consideration of the same. Thereafter, there was a lull for sometime, until the respondent herein filed an execution petition in E.P. No. 26/2008 seeking execution of the award. Subsequent thereto, the petitioner herein filed an application in A.S. No. 26/2004 on 16.01.2009 under Section 151 of CPC seeking re -call of the order of dismissal dated 11.08.2004 and restoration of A.S. No. 26/2004 to consider the correctness of the award passed by the Arbitrator. The application was opposed by the respondent herein. The learned Judge of the City Civil Court has dismissed the application by the order dated 07.03.2011. It is against the said order, the petitioner is before this Court.

(3.) LEARNED senior counsel for the petitioner would strenuously contend that challenge to the award can be made only under Section 34 of the Act before the District Court and not in a contempt petition. Though such undertaking was recorded in contempt proceedings, the petitioner had in fact filed an application seeking to withdraw from such undertaking. Though no order has been passed on the same, the petitioner in any event had filed an application under Section 34 of the Act in the contempt petition as also an application (Arbitration Suit) was filed before the Civil Court. Thereafter the suit was withdrawn with the bona fide belief that the application filed in the contempt proceedings would be considered. Since the same was not done, the petitioner has thereafter filed the application seeking recall of the order of dismissal and restore the suit for consideration. In that regard, it is contended that the position of law enunciated by the Hon'ble Supreme Court is that an arbitral award can be challenged only before the District Court and not before the Court appointing the Arbitrator. In that view, the application ought to have been allowed and A.S. No. 26/2004 should have been restored, as otherwise, the petitioner would be left with no legal remedy. The restoration sought was to exercise the legal remedy available to the petitioner and as such, delay in filing the application would not arise. Even otherwise an opportunity should have, been granted to file an application and seek condonation of delay.