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Himachal Pradesh High Court · body

2001 DIGILAW 274 (HP)

R. K. KAPILA v. UNIT OFFICER

2001-10-05

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J: - Since common questions of law and similar facts are involved in these two civil suits and petitions therein, therefore, these are being disposed of by this common order. 2. Brief facts are that disputes arose between the parties out of the Contract No. 125110/738-41 dated 17.5.1988 regarding the work of construction of Temporary Type "B" quarters at Simblue Block No.39 to 50 (Package B) Chamera, Hydro electricity Project and as per the terms and conditions of the contract between the parties, the disputes were referred for arbitration. They arbitrator made the award dated 12.7.1996 in the matter. The claimant filed a\ application under Section 14 of the Arbitration Act, 1940 (here after referred to as the old Act) being OMP(M) No. 13 of 2000 for getting the award filed and making it a rule of the Court. As a consequence, the arbitrator filed the award which was registered as civil suit No.30 of 2000. Respondent filed objection petitioner under Section 34 of the Arbitration and conciliation act, 1996 (hereafter referred to as the new Act) against the award which has been registered as OMP 559 of 2000. The claimant contested the objection and filed reply to the objection petition. 3. Similarly, disputes arose between the parties out of the contract No. 125110/1093-96 dated 1.6.1988 for the works of (a) construction of Permanent Type "C) quarters at Simblue Block No. 1 to 5 (20 Units) Package C-l and (b) construction of Permanent Type "D" quarters at Simblue block 1 to 3 (3Units) Package C-2 Chamera Hydro electricity Project. The disputes were referred to the arbitrator as per the terms and conditions of the agreement. In this matter, the arbitrator made his award dated 12.7.1996. The claimant filed a application under Section 14 of the old Act being OMP (m) No. 14 of 2000 for filing the award in the Court and making it a rule of the Court. As a consequence, the arbitrator filed the award which has been registered as Civil Suit No.34 of 2000. The respondent filed objections under Section 34 of the new Act against the award which have been registered as OMP No.497 of 2000. The claimant contested the objections and filed reply to the objection petition. 4. On the rival pleadings of the parties in both the cases, the following identical issues were framed on 15.12.2000: 1. The respondent filed objections under Section 34 of the new Act against the award which have been registered as OMP No.497 of 2000. The claimant contested the objections and filed reply to the objection petition. 4. On the rival pleadings of the parties in both the cases, the following identical issues were framed on 15.12.2000: 1. Whether the objection petition has been preferred within the period > of limitation? OPO. 2. Whether the award in question is beyond the scope of the agreement between the parties? OPO. 3. Whether the award does not give the reasons on which it is based? OPO 4. Relief 5. Parties led evidence by way of affidavits. 6. Arguments were heard.1 Issue No. 1 (in each case) 7. As per the contract between the parties, the arbitral proceedings were to be conducted as per the provisions of old Act or any statutory modificatipn or re-enactment thereof and the rules made thereunder for the time being in force. 8. The arbitral clause in the contract, thus, clearly provided that the arbitral proceedings regarding the disputes arising out of the aforesaid contract, would be governed by the Act or any statutory modification or re-enactment thereof as may be in force at the relevant time. In other words, the arbitral proceedings were to be governed by the law relating to arbitration as was in force at the time of conducting of the arbitral proceedings and making of the award. At the relevant time, admittedly, the new Act had come into force. It is, therefore, conceded for the parties that the awards have been made as per the provision? of the new Act. Therefore, there cannot be any dispute that parties have a right to file objections against the awards in question under Section 34 of the new Act and in fact the objections in both the cases have been filed by the respondent under the said provisions. 9. Sub section (3) of Section 34 of the new Act provides as under: "34. Application for setting aside arbitral award: (l) and(2)................. 9. Sub section (3) of Section 34 of the new Act provides as under: "34. Application for setting aside arbitral award: (l) and(2)................. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the application was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." 10. It is clear on a bare reading of the aforesaid provisions that objections against an award under Section 34 of the new Act can be made within three months from the date on which the objector had received the arbitral award. However, the objector may file objections within a further period of 30 days, if the objector satisfies the Court that he was prevented by sufficient cause from making the application under Section 34 of the new Act within the said period of three months. Thereafter, the filing of the application under Section 34 the new Act is clearly and absolutely barred. 11. It is not in dispute that copies of both the awards in question were endorsed by the arbitrator to the parties vide his communication dated 12.7.1996 and were duly received by the parties. 12. In both the cases, the respondent had filed objections i.e. OMP Nos. 497 and 559 of 2000 on October 3,2000, evidently much after the expire of the period prescribed for filing such objections under sub- section (3) of Section 34 superior. Therefore, these petitions are clearly time barred. Accordingly, issue No.l (in each case) is decided against the objector respondent. Issue Nos. 2 and 3 13. In view of the findings on issue No.l above the objection petitions are liable to be dismissed, therefore, findings need not be recorded on these issues. Issue No.4 (Relief) 14. In view of the above findings, both the objection petitions i.e. OMP No.497 of 2000 and OMP No.559 of 2000 merit dismissal and are accordingly dismissed. OMP (M) Nos. 13 and 14 of 2000 N 15. Issue No.4 (Relief) 14. In view of the above findings, both the objection petitions i.e. OMP No.497 of 2000 and OMP No.559 of 2000 merit dismissal and are accordingly dismissed. OMP (M) Nos. 13 and 14 of 2000 N 15. Section 14 of the old Act provided for filing of the award in the Court for being dealt with as per the provisions contained in Sections 15, 16 and 17 of t^e old Act, that is to say, to moc1 ify or to remit the award or to pass a judgment in terms of the award. However, the new Act does not provide for filing of the award in the court and to make it a rule of the Court but an award under the new Act becomes final and enforceable by virtue of the provisions of Sections 35 and 36 of the new Act. Therefore, in view of the admitted position as aforesaid the applications being OMP (M) Nos. 13 and 14 of 2000 are misconceived and are accordingly dismissed. Civil Suit Nos. 30/2000 and 34/2000 16. In view of the findings given above, these suits are infructuous and are disposal of is such.