KOTHARI AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) BOTH these Motions are being taken together as disposal of one will have the effect on disposing the other.

(2.) THE petitioners in Notice of Motion No. 2411 of 1998 were the respondents in Arbitration Petition No. 223 of 1998. The petitioners therein had an award in their favour. They approached this Court on the ground that no application for setting aside the award was made within 30 days. It was contended on behalf of the petitioners/respondents therein that the Award was in terms of section 34 (3) of the Arbitration and Conciliation Act, 1996. The said contention was rejected on the ground that the proceedings were initiated under the Arbitration Act, 1940 and were saved by section 85 of the Arbitration and Conciliation Act, 1996. In view of that a decree was passed in terms of prayer clauses (a), (b) and (c ). This order is sought to be reviewed and/or this Court called upon to exercise its inherent powers in Notice of Motion No. 2411 of 1998. Notice of Motion No. 3129 of 1998 has been taken out by the petitioners in Arbitration Petition No. 251 of 1998. The said petition was filed to challenge the Award dated 20th April, 1998. In the affidavit of Shri Naresh C. Goyal in support of Notice of Motion in paragraph 5, it is set out that the petitioners Union of India were under the wrong impression and belief that the proceedings for setting aside the award were to be filed in accordance with the proceedings of the Arbitration and Conciliation Act of 1996 and it is only after the decree was passed by this Court on 5th August, 1998 that the petitioners came to realise that the proceedings have to be filed under the Arbitration Act, 1940. For the sake of the record it may be recorded that no where in the Arbitration Petition No. 25 of 1998 is there any averment that the petition has been filed under the Arbitration and Conciliation Act, 1996 and on the contrary in the Synopsis the only reference is made to Arbitration Act of 1940. By the Notice of Motion the petitioners have prayed that the delay in filing the petition be condoned for the reasons set out in the affidavit in support of the Notice of Motion. Notice of Motion No. 3129 of 1998 can be considered only if Notice of Motion No. 2411 of 1998 in Arbitration Petition No. 223 of 1998 is allowed. With the above background, I may now proceed to consider Notice of Motion No. 2411 of 1998. For the sake of clarity also the parties are referred to as the Union of India and M/s. Kothari and Company respectively.

(3.) THE Review Applicant/ Union of India have principally sought review of the order on the following grounds: