UNION OF INDIA Vs. GOURI CONSTRUCTION COMPANY

JUDGEMENT

(1.) THESE two appeals are directed against the judgment and decree dated 23. 11. 1998 passed by the learned Additional District Judge No. 3, Jodhpur in Civil Misc. Cases No. 1-A/97 and 3-A/96. In Civil Misc. Case No. 1-A/97, an application was filed by the Union of India under Sections 30 and 33 of the Arbitration Act, 1940 and the appellant-Union of India submitted objections against the award dated 25. 7. 1996 and prayed that the award may be be set aside, whereas in case No. 3-A/96, the respondent No. 1 submitted application under Sections 14, 17 and 29 of the Arbitration Act and prayed that the award passed by respondents No. 2 and 3 be made rule of the court. Both the above miscellaneous cases were decide by the learned Additional District Judge No. 3, Jodhpur by common judgment and decree dated 23. 11. 1998. The appellant Union of India has challenged the above judgment and decree dated 23. 11. 1998 by filing two separate appeals involving the same point in controversy, therefore, both the appeals are being decided by this judgment.

(2.) IN these appeals, the learned counsel for respondent No. 1 raised preliminary objection with respect to the maintainability of the appeals on the ground that the present appeals have been filed under Section 37 of the Arbitration and Conciliation Act, 1996 whereas, admittedly, the proceedings before the arbitrator was under the old Act, i. e. , Arbitration Act, 1940 and the rule of court was made by the court below due to the fact that proceedings were under the old Act. Therefore, in view of the objection of the learned counsel for respondent-No. 1, the learned counsel for the appellants requested that the appeals may be treated as appeals under the old Act. Both the appeals have been filed within period of limitation and there is no bar in treating the appeals under the old Act, therefore, the appeals are treated as appeals under Section 39 of the Arbitration Act, 1940.

(3.) THE learned counsel for the appellants referred the condition of the tender notice which is mentioned in the letter dated 9. 9. 1988 sent to respondent No. 1 M/s Gouri Construction Company. In this letter at the last page, there is a column No. 7, which is as under: "nothing extra shall be paid for removing rubbish so released from the dismantled building and the same shall have to be dumped at a place as directed by the Engineer and have to be removed daily. "