CONTINENTAL MILKOSE INDIA LTD Vs. DELHI MILK SCHEME

JUDGEMENT

(1.) THE respondent to this Execution Petition has taken objection that this Petition for execution of the award dated 22nd april, 2002 is not maintainable in view of the fact that the agreement between the parties provided that the provisions of Arbitration and conciliation Act, 1996 would not be applicable and since the provisions of Arbitration and Conciliation Act, 1996 were not to be applicable, the award cannot be executed against the respondent. Thus, the issue arises is whether the parties by an agreement can exclude the application of a statute.

(2.) THE relevant arbitration clause between the parties reads as under:-

(3.) IT is argued by counsel for the respondent that in view of agreement between the parties that the provisions of Arbitration and conciliation Act, 1996 shall have no application to any proceedings held or award/decision made in pursuance of the agreement, the award cannot be challenged under Section 34. Counsel submitted that the agreement provided for filing of further reference/revision for setting aside the award before the Law Secretary and the respondent had, in fact, preferred a reference before the Law Secretary even the reference was dismissed and award passed in favour of the petitioner was upheld. It is submitted that in view of the fact that the provisions of Arbitration and Conciliation Act, 1996 were specifically excluded, the respondent did not file objections under Section 34. Otherwise, the respondent would have filed objections against the award under Section 34. The respondent in order to set aside the award had filed a suit for declaring the award as null and void and so long as the suit of the respondent was not decided, this execution was not maintainable.