MANAGING DIRECTOR CENTRAL WARE HOUSING CORPORATION BHAVAN 4 1 SIRI INSTITUTION AREA SIRI FORT HAUZKHAS NEW DELHI 110016 Vs. KOONINENI VENKATESWARA RAO

JUDGEMENT

(1.) DEFENDANTS 1 to 3 in O. S. No. 364 of 1985 on the file of the Additional Chief Judge, City Civil Court, Hyderabad (Temporary) are the appellants in the appeal. The 1st respondent-plaintiff filed the suit praying to make the Award passed by the Arbitrator, the 2nd respondent, rule of the court The appellants entered into a contract with the 1st respondent for construction of a Warehouse (godown) in Warangal district It is stated that the construction of the godown was completed on 15-7-1982 and that it was handed over to the appellants in August, 1982 Some amounts were due to the 1st respondent by the appellants under the contract. The dispute between the parties was referred to the 2nd respondent for arbitration who made and signed the award on May 25, 1984. A signed copy of the award was handed over to the parties with a covering letter authorising them to file the same on behalf of the arbitrator. On June 13, 1984 the 1st respondent called upon the 2nd respondent to file the Award to make it rule of the court. The first date of hearing of the suit was 5-7-1984. The appellants filed their written statement. In response to the notices issued to the Arbitrator by the court under Sec. 14 (2) of the Arbitration Act, the Arbitrator sent the Award in a sealed cover which was received by the Court on October 4, 1986 and was opened by the court on 24-10-1986 when P.W.1 was examined. On that day the 1st respondent was examined as P.W.1 and 17 documents including the award were marked. Thereafter on October 13, 1987 the court passed the judgment making the award rule of the court. It is against this judgment and decree the present civil miscellaneous appeal is filed.

(2.) SRI I V Suryanarayana, the learned counsel for the first respondent raised a preliminary objection as to the maintainability of the appeal. He submits that under Section 39 of the Arbitration Act (for short 'the Act') an order setting aside the award is appealable. In the absence of any application to set aside the award bv the appellants-defendants the question of refusing to set aside the award does not arise. Therefore, the appeal is not maintainable.

(3.) SINCE the preliminary objection cannot be decided de hors the question that is raised in the appeal viz , whether the order under appeal is bad in law for not issuing the notice under Sec 14 (2) of the Act I propose to consider this contention on merits along with the preliminary objection.