ONODA ENGINEERING AND CONSULTING COMPANY LIMITED JAPAN Vs. PROJECT AND EQUIPMENT CORPORATION OF INDIA LIMITED BOMBAY

JUDGEMENT

(1.) THIS is a plaintiffs motion of its own suit filed as a matter of abundant caution during pendency of arbitration proceedings already initiated by it in respect of the same claim. The plaintiffs are seeking stay of this suit under section 34 of the Arbitratation Act, 1940 as a matter of abundant caution in view of it apprehension that in absence of a stay order the pending arbitration proceedings may be affected by operation of section 35 of the Arbitration Act. In alternative, the plaintiffs have sought relief under section 151 of the Code of Civil Procedure to the same effect or at least limited relief as may be moulded by the Court having regard to the fact and circumstances of the case. The plaintiffs are also seeking a clarificatory order from this Court to the effect that the pending arbitration proceedings are not and will not be affected by reason of pendency of the suit in terms of section 35 of the said Act on the ground that right from the beginning the plaintiffs have clarified that they desire to continue with the arbitration proceedings and they have filed this suit only as a matter of abundant caution. In alternative the plaintiffs have sought adjournment of this motion for a reasonable time as ad-interim relief is already operating in favour of the plaintiffs so that the fate of the pending arbitration proceedings becomes known by that time and the Court can therefter better decide as to what order is to be passed on this motion for stay.

(2.) IT shall be necessary to state the facts and particulars of various proceedings already adopted by the parties in different courts and relating to the same subject matter before the rival contentions having bearing on this notice of motion are examined. The relevant facts are as under :---

(3.) IN (Sujant Singh v. Mohinder Paul) A. I. R. 1964 Punjab, 395, H. R. Khanna, J. , held that the subsisting award and the proceedings relating to enforcement or setting aside thereof were not affected merely by reason of filing of a suit as a matter of abundant caution to save limitation during the pendency of proceedings concerning enforcement of an award. In this case, an award was made on 10th July 1960. The said award was challenged by the alleged judgment debtor under the award on various grounds. During the pentency of the proceedings seeking to set aside the award, the award holder claiman filed a civil suit for the same claim as a matter of abundant caution to prevent the remedy of a suit time barred. The said civil suit was stayed at the instance of the defendant. In paragraph 6 of his judgment, the Honble Mr. Justice Khanna observed as under :---