SUBRAT RANJAN DASH Vs. ACC LTD., BHUBANESWAR

JUDGEMENT

(1.) The petitioner, being the opposite party in Arbitration Petition No.156 of 2017 of the Court of learned District Judge, Dhenkanal assails the order passed by the learned Judge on 30.10.2017 allowing an application filed by the sole opposite party-petitioner, thereby passing an order of stay of the award made by the sole arbitrator in favour of the present petitioner. The impugned award has been delivered on 30.10.2017 directing the present opposite party to pay sum of Rs. 48,60,891/- along with interest @ 9% p.a. w.e.f. 15.12.2010. As against that award, the sole opposite party i.e: ACC.Ltd filed an application under Section 34 of the Arbitration & Conciliation Act, 1996, hereinafter referred to as the 'Act' for brevity in that application, it also filed an application under Section 36 of the Act for stay of the award. In his order, the learned District Judge has directed himself to consider the only and short question that arose before him that is whether the provision of Order 41 Rule 5 of the Code of Civil Procedure, 1908, hereinafter referred to as the 'CPC' for brevity, is applicable to a proceeding filed under Section 34 of the Act The learned District Judge took into consideration the reported cases of Associates Builders v. Delhi Development authority, AIR 2015 SC 620 , P.R. Shah Shares and Stock Brokers Pvt. Ltd. v. B.H.H. Securities Pvt. Ltd., (2012) 1 SCC 594 , wherein the Hon'ble Supreme Court has held that while dealing with a petition under Section 34 of the Act, the Court does not sit in appeal over the award of Arbitral Tribunal and the award can be challenged under Section 34 of the Act only on the grounds mentioned in Section 34 (2) of the Act. The learned District Judge also took into consideration the reported case of Kanpur Jal SanSthan and others v. Bapu Constructions, (2015) 5 SCC 267 , wherein the Hon'ble Supreme Court has held that provision of Order 41, Rule 5 of the CPC applies to proceeding before the learned District Judge but learned District Judge did not follow the judgment passed in the Kanpur Jal Sansthan (supra). But, having regard to the ratio decided in P.R. Shah Shares and Stock Brokers Pvt. Ltd. (Supra), the learned District Judge held that a petition under Section 34 of the Act is not an appeal. Hence, the provision of Order 41 Rule 1 (3) and Rule 5 of the CPC will not be applicable. Without imposing any condition, the learned District Judge has stayed the award of the sole arbitrator. In advancing argument, Mr. Acharya, learned Counsel for the opposite party would argue that application under Section 34 of the Act not being an appeal imposing the condition available in Order 41, Rule 1 (3) and Rule 5 of the CPC would be illegal. He relies upon the case of the Rendezvous Sports World v. Board of Control for Cricket in India, 2016 SCC Online Bombay 6064 . It is appropriate to take note of the said paragraph, which reads as follows :

(2.) A plain reading of this paragraph leaves no doubt in the mind of the Court that after amendment of Section 36 of the Act, the situation has changed. Previously, the provision, as it stood, only on filing an application under Section 34 of the Act would stay further proceeding of the execution of the award passed by the Arbitral Tribunal. Section 36 of the Act, prior to and after amendment, reads as follows:

(3.) A plain reading of the proviso lead to the conclusion that the Court, while granting stay in the case of arbitral award for payment of money, have due regard to the provisions of grant of stay money degree under the provisions of Code of Civil Procedure, 1908.