BHARAT ALUMINUM COMPANY LIMITED Vs. R.K.TRANSPORT

JUDGEMENT

(1.) In the present appeal, the challenge is to the order dtd. 25/4/2023 passed by the Commercial Court wherein the appellants have been non-suited by recalling the order of admission of an appeal and the appeal was dismissed holding that it is barred by time. Hence the appellant is before this Court.

(2.) The facts of the case are that an award was passed by the sole arbitrator in Arbitration Case No.1/2012. The award was in favour of the respondent. The said award was received by the appellant with the signed copy of the award on the same day i.e., 9/4/2022 the day the award was passed. The appellant filed the appeal on 11/7/2022 under Sec. 34 of the Arbitration and Conciliation Act, 1996 before the Commercial Court. The prayer was made to set aside the award and grant of stay was also sought for. When the case was listed before the Commercial Court, the Reader to the Court was directed to submit check report and to ensure to come up for consideration on admission on 13/7/2022. The appellant in support of appeal memo, filed his affidavit stating that 9/7/2022 was non-working day being second Saturday so far as the Commercial Court is concerned and obviously next day was Sunday. Subsequently, the application was immediately filed on 11/7/2022 u/s 34 of the 1996 Act seeking setting aside of the award passed by the Sole Arbitrator along with stay application. Thereafter, when the matter was taken up on 13/7/2022, the Commercial Court issued notice on Sec. 34 application of the appellant with a rider to deposit 50% of the arbitral amount within a period of 4 weeks. Accordingly, 50% of the awarded amount was deposited by the appellant on 5/8/2022 and the proceedings were going on. Thereafter, after furnishing bank guarantee and executing personal bonds, the amount was disbursed to the respondent.

(3.) Against the order of stay of recovery and notice by Commercial Court, the respondent on 14/10/2022 filed writ petition bearing W.P(227). No.680/2022 before the High Court of Chhattisgarh with a prayer to direct the appellant to deposit the balance amount of the awarded amount with liberty to the respondent to withdraw such amount and also sought further direction to the appellant to furnish a bank guarantee of any nationalized bank for the remaining dues of the award. Thereafter, this High Court on 10/11/2022 granted liberty to the petitioner (respondent herein) to move an application before the concerned Court to recall the said order. Order dtd. 10/11/2022 passed in WP(227) No.680/2022 is relevant here and quoted below :