STATE OF WEST BENGAL Vs. DILIP KUMAR CHATTERJEE

JUDGEMENT

(1.) The Court : This arbitration petition is for setting aside award. Petitioner has also taken out an application under section 36, Arbitration and Conciliation Act, 1996. Both were called on for hearing on 17th July, 2019 and following order recorded:

(2.) Today, Mr. Saha, learned advocate appearing on behalf of respondent award- holder submits, the application must be dealt with before the arbitration petition. He relies on order dated 28th September, 2018 of Supreme Court in Special Leave to Appeal (C) No(s). 22289/2018 (Pam Development Pvt. Ltd. vs. The State of West Bengal and Anr.). He submits, by order impugned before Supreme Court, the arbitration Court had granted unconditional stay till date of hearing of arbitration petition, keeping the application pending. Such order was set aside as being completely wrong in principle. Hence, declaration made by said Court that it is clear section 36 application is to be disposed of before section 34 application. Mr. Chowdhury, on the other hand, wants to press with his client's challenge to the award without pressing his client's application for stay of it. On query from Court, Mr. Saha submits, execution levied stands adjourned and he has no objection for Court proceeding to adjudicate on the challenge. Court is emboldened to proceed to adjudicate the challenge since, in case on hand, petitioner applicant is not, at present, pressing the application while in the case on said order made by Supreme Court, unconditional stay of operation of award was granted on the application kept pending, for adjudication of the challenge.

(3.) Mr. Chowdhury relies on judgment of Supreme Court in Ssangyong Engineering and Construction Co. Ltd. vs. National Highways Authority of India (NHAI) available at 2019 SCC Online SC 677, paragraphs 13 and 15, in which were said, said Court in Board of Control for Cricket in India vs. Kochi Cricket (P). Ltd. reported in (2018) 6 SCC 287 had held that Amendment Act, 2015 would apply to section 34 petitions that are made after effective date and, the declaration in Ssangyong (supra) that section 34, as amended, will apply only to section 34 applications made on or after 23rd October, 2015. He then relies on another judgment of Supreme Court in Associated Builders vs. Delhi Development Authority reported in (2015) 3 SCC 49, paragraphs 19, 20, 28, 29 and 31 to submit, grounds of challenge available under pre-amended section 34 are those indicated therein.