STATE OF H.P Vs. J.C.GUPTA

JUDGEMENT

(1.) STATE has filed this appeal, under Section 39 of the Arbitration Act, 1940, against the order dated 10.8.2001, passed by Learned District Judge, Mandi, thereby dismissing the objections under Sections 30 and 33 of the Arbitration Act, 1940, filed by the appellant, with the observation that the same are not maintainable.

(2.) RELEVANT facts may be noticed. Appellant asking through Executive Engineer, PWD, Sundernagar awarded some work to the respondent. Written agreement was executed. Clause (25) of the agreement provided for adjudication of the dispute, that may arise between the parties, by the arbitration. The clause, inter -alia, provided that the arbitration proceeding would be governed by Arbitration Act 1940 or any other statutory modification or re -enactment thereof and the rules made there under. This agreement was executed some time in the year 1985. A dispute arose between the parties and reference was made to the Arbitrator in November 1994.Arbitrator gave his award in favour of the respondent on 28.9.1996. He awarded an amount of Rs. 4,41,093/ - with simple interest at the rate of 10% in favour of the respondent. By the time, the Arbitrator gave his award dated 28th September 1996, Arbitration Act of 1940 stood repealed by The Arbitration and Conciliation Act, 1996 as the Act came into force on 22nd January, 1996. Appellant was aggrieved by the award. It filed objections under Section 34 of The Arbitration and Conciliation Act, 1996 in this Court. A Learned Single Judge of this Court vide order dated 2nd June 1997 held that objections under Section 34 of The Arbitration and Conciliation Act, 1996 were not maintainable and competent as the new Act was not applicable. He directed the appellant to approach the appropriate forum by filing objections under the old Act i.e. The Arbitration Act, 1940. The appellant then filed objections under Section 30 read with Section 33 of the Arbitration Act, 1940 before the District Judge Mandi because the amount of the award was within the pecuniary jurisdiction of the District Judge. When the objections were pending before the learned District Judge, Supreme Court laid down the law in Thyssen Stahlunion Gmbh Vs Steel Authority of India Ltd, (1999) 9 Supreme Court Cases 334 that where an award was given by the Arbitrator after the commencement of The Arbitration and Conciliation Act, 1996 and the arbitration agreement provided that The Arbitration Act 1940 as amended or re -enacted shall govern the arbitration matter, The Arbitration and Conciliation Act, 1996 and not the Arbitration Act, 1940 would apply to the arbitration proceedings, including the proceedings for enforcement of award, even though dispute arose before the Act of 1996 came into force and the reference to the Arbitrator was also made prior to the commencement of the said Act of 1996.

(3.) LEARNED District Judge decided the matter on 10 August 2001 and passed the impugned order. He held that in view of the law laid down by the Honble Supreme Court in the above referred to judgment, award passed by the Tribunal was executable without getting the same made rule of court. Objections were dismissed with the observations that The Arbitration Act, 1940 was not applicable.