BHATINDA CONSTRUCTION CO. Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS revision petition has been filed against the order dated 26.8.2004 passed by the learned Civil Judge (Sr. Divn.), Bathinda allowing the application moved for amendment of the petition under Sections 16, 30 and 33 of the Arbitration Act, 1940 (for short Rs.1940, Act').

(2.) IN pursuance to the reference made, the arbitrator passed an award on 23.7.1998 clearly mentioning therein that the proceedings were held under the Arbitration Act, 1940. The respondent Union of India on receipt of notice of filing of award in the Court filed objections against the said award before the learned Civil Judge (Sr. Divn.), Bathinda. However, during the pendency of the said proceedings an application was moved for amendment of the application to be one under Section 34 of the Arbitration and Conciliation Act, 1996. The said amendment was allowed with the consent of the parties and the learned Civil Judge (Sr. Divn.), Bathinda continued to proceed with the matter, even though under the New Act he had no such jurisdiction to entertain a petition under Section 34 of the Arbitration and Conciliation Act, 1996. Thereafter, another application was moved by the Union of India for amendment of the objection petition to bring it under Sections 16, 30 and 33 of the Act, 1940, primarily on the ground that the proceedings which had commenced prior to the commencement of the New Act were to be dealt with under the old Act. The said application was allowed. However, no further adjudication of the application took place, in view of stay granted by this court.

(3.) THE proceedings before the learned Civil Judge (Sr. Divn.), Bathinda could only to be taken in case the parties were proceeded under the 1940, Act. It may be noticed here that after giving consent to the amendment of objection petition to bring it under Section 34 of the New Act, the petitioner raised an objection that this petition was not competent and, therefore, the necessity arose for amendment of the objection petition again. The petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of M/s. N.S. Nayak and Sons v. State of Goa, 2003(2) RCR(Civil) 786 (SC) : 2003(2) Civil Court Cases 113, to contend that once a party has consented to proceed under the New Act they cannot revert back to the same. In this regard he made reference to para 11 of the judgment. The reading of the judgment would show that the contention of the petitioner is totally misconceived, rather the Hon'ble Supreme Court was pleased to lay down that the proceedings which have commenced before commencement of New Act would be governed by the Old Act i.e. 1940, Act.