GULBARGA UNIVERSITY Vs. MALLIKARJUN S KODAGALI

JUDGEMENT

(1.) IN this appeal, the appellant-Gulbarga University is challenging the order passed by the Court below dismissing the petition filed under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act' for short ). Though this matter is listed for orders today, with the consent of the learned Counsels for the parties, we have taken up this matter for final hearing.

(2.) THE proceedings before the Court below were initiated by the appellant herein seeking to set aside the award passed by the arbitrator, the second respondent herein who has held, that the appellant herein was required to pay certain sum of money, to the respondent 1-contractor as against the work executed by him. The twin contentions raised by the appellant before the Court below stating that there was no arbitration clause in the agreement entered into between the parties and that there was no dispute that was arbitrable consequently no award in the eye of law was passed by the Arbitrator were not found favour by the Court below. It is in this background the appellant has come up before this Court assailing the order dismissing his petition filed under Section 34 of the Act. The Court below has dismissed the application on the ground that the petition filed was barred by limitation and the appellant was not entitled for the benefit under Section 34 (3) of the Arbitration Act.

(3.) WE have heard the learned Counsel for the appellant Sri N. B. Bhat and learned Senior Counsel Sri G. S. Vishweshwara who has appeared for the respondent's Counsel. The only point that arises for consideration in this appeal is: "whether the proceedings initiated under Section 34 of the arbitration and Conciliation Act of 1996 are within time?" 3-A. The main contention urged by the learned Counsel for the appellant is that soon after the execution proceedings were initiated by the contractor-respondent 1 seeking to execute the award passed by the arbitrator, the appellant-University approached this Court by filing crp No. 3719 of 2000 (Gulbarga University, Gulbarga v Mallikarjun), wherein a specific contention was taken contending that there was no award in the eye of law passed by the Arbitrator which can be executed. This contention of the University was upheld and the CRP was allowed on 30-11-2001 by setting aside the execution proceedings. Aggrieved by this order passed by this Court, the respondent 1 contractor preferred a civil Appeal No. 2758 of 2002 before the Apex Court and on 5-11-2003 (Mallikarjun v Gulbarga University), the Apex Court while setting aside the order passed by this Court held that the adjudication made by the Arbitrator was in the nature of an award and the same could be executed and the execution proceedings could go on. It is thereafter that the appellant herein invoked Section 34 of the Act and presented this petition on 8-12-2003.