Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 856 (GUJ)

State of Gujarat v. Shah Enterprise

2014-08-01

C.L.SONI

body2014
JUDGMENT C.L. Soni, J. 1. In this petition filed under Arts. 226/227 of the Constitution of India, the petitioners have prayed to quash and set aside the award dated 21-5-2000 made by the Sole Arbitrator under the provisions of the Arbitration and Conciliation Act, 1996 ("the Arbitration Act" for short) as well as the order dated 21-10-2005 passed by the learned Presiding Officer, F.T.C. No. 9, Bharuch in Arbitration Execution Petition No. 359 of 2000 ordering the petitioners to deposit Rs. 1,84,35,046/- with interest at the rate of 16% p.a. on the principal amount. I have heard the learned Advocates for the parties. Learned A.G.P. Mr. P.P. Banaji appearing for the petitioners submitted that the learned Sole Arbitrator appointed under the provisions of the Arbitration Act lacked jurisdiction to decide the dispute arose between the parties to the "Works contract" as the provisions of the Arbitration Act ceased to apply to such dispute on coming into force of the Gujarat Public Works Contract Disputes Arbitration Tribunal Act, 1992 ("the Tribunal Act" for short). Mr. Banaji submitted that Sec. 21 of the Tribunal Act since provides for transfer of all proceedings in connection with the "Works contract" to the Tribunal, continuous of arbitration proceedings and making of award under the Arbitration Act was without jurisdiction. Mr. Banaji submitted that since the contract given to the respondent for the work of providing and laying underground pipelines was the "Works contract" within the meaning of Sec. 2(1)(k) of the Tribunal Act, and any dispute arising out of 'Works contract' could be decided only by the Tribunal under the Tribunal Act. The impugned award made by the Sole Arbitrator under the Arbitration Act is thus without jurisdiction and cannot be executed like a decree against the petitioners. Mr. Banaji submitted that the laying of pipelines is part of the canal work and since the works relating to the construction or maintenance of canal is included within the definition of "Works contract", the contract given to the respondent for the work of laying the pipelines would thus fall within the "Works contract", and therefore, only the Tribunal under the Tribunal Act has jurisdiction to decide the dispute arising out of such "Works contract". Mr. Mr. Banaji has relied on the definition of canal given in Sec. 3 of the Bombay Irrigation Act, 1879 so as to point out that the canal includes the pipes with other things mentioned therein. Mr. Banaji submitted that the Sole Arbitrator as also the executing Court have failed to properly construe the definition of "Works contract" in the Tribunal Act and thereby have committed serious error of jurisdiction in holding that the contract of laying the pipelines given to the respondent was not the "Works contract". Mr. Banaji submitted that since the award and the order impugned are without jurisdiction and cannot be implemented against the petitioners, it was not required of the petitioners to take recourse to Sec. 34 or 37 of the Arbitration Act against the award made by the learned Sole Arbitrator under the Arbitration Act and the petitioners are entitled to invoke jurisdiction of this Court under Arts. 226/227 of the Constitution of India, especially when it was open to the petitioners to oppose the execution on the ground of lack of jurisdiction with the learned Sole Arbitrator in the present case. Mr. Banaji thus urged to allow the petition and to quash and set aside the impugned award and the order of the executing Court. Mr. Banaji has relied on following judgments: "(1) In the case of M/s. K. Raheja Development Corporation v. State of Karnataka, reported in, AIR 2005 SC 2350 ; (2) In the case of Mrs. Kamini Malhotra v. State of M.P., reported in, AIR 2003 MP 13 " 2. As against the above arguments, learned Advocate Mr. B.S. Patel appearing with learned Advocate Mr. Chirag B. Patel for the respondent submitted that the petition under Arts. 226/227 of the Constitution of India to challenge the award made by the Sole Arbitrator and the order made by the Court in Arbitration Execution Petition for execution of the award of such private arbitrator is not maintainable. Mr. Patel submitted that even by virtue of the specific statutory remedy provided under Sec. 34 of the Arbitration Act to challenge the award made by the Sole Arbitrator under the Arbitration Act, the petitioners are not entitled to invoke the jurisdiction of this Court under Arts. 226/227 of the Constitution of India. Mr. Mr. Patel submitted that even by virtue of the specific statutory remedy provided under Sec. 34 of the Arbitration Act to challenge the award made by the Sole Arbitrator under the Arbitration Act, the petitioners are not entitled to invoke the jurisdiction of this Court under Arts. 226/227 of the Constitution of India. Mr. Patel submitted that the petitioners had filed Regular Civil Suit No. 216 of 2000 for the relief that the Sole Arbitrator could not decide the disputes under the Arbitration Act as the contract given to the respondent was "Works contract". In the said suit, at the instance of the respondent, the plaint was rejected against which no further proceedings are taken by the petitioners. The petitioners are thus estopped from challenging the award on the ground that the contract given to the respondent was "Works contract", and therefore, the learned Sole Arbitrator lacks the jurisdiction under the Arbitration Act. 3. Mr. Patel submitted that the above order having attained finality and the petitioners having allowed the learned Sole Arbitrator to make the award under the Arbitration Act, the only remedy for the petitioners was to challenge the award under Sec. 34 of the Arbitration Act. Mr. Patel submitted that since the award is not challenged under Sec. 34 of the Arbitration Act, the same has become final and it is required to be implemented as a decree of the Court, and therefore, the Court below committed no error in ordering the petitioners to deposit the amounts under the impugned award with costs of the Arbitrator. 4. Mr. Patel submitted that the work of laying pipelines does not fall within the definition of "Works contract" under the Tribunal Act. Mr. Patel submitted that the definition of "Works contract" clearly provides that over and above the works including the work of canal specified therein, if any more work which is not mentioned in the definition is to be included in the definition of "Works contract", same could be done by the State Government by issuing notification in the Official Gazette specifying any work to be included in the definition of "Works contract". Mr. Mr. Patel submitted that the work relating to pipelines since not included within the definition of "Works contract", the Government came out with notification dated 29-9-2003 in the Official Gazette in exercise of the powers conferred under Sec. 2(1)(k) of the Tribunal Act and specified the work of all types of pipelines of the State Government, or as the case may be, of the public undertakings for the purpose of the Act. Mr. Patel submitted that if the work relating to pipelines was to be taken to have been included within the definition of the 'Works contract', it was not required of the Government to issue such notification in exercise of the powers under Sec. 2(1)(k) of the Tribunal Act. Mr. Patel submitted that in fact, the contract given to the respondent for laying pipelines had no connection with the construction, repairs or maintenance of canal and the work of canal and work of pipelines both were independently executed and had no connection with each other. 5. Mr. Patel submitted that the definition of 'Works contract' under the Tribunal Act is plain and simple and there is no ambiguity in such definition, and therefore, no reliance on the definition of canal in other statute can be placed. Mr. Patel submitted that the meaning given to the word "canal" in the Bombay Irrigation Act, 1879 sought to be relied on by learned A.G.P. Mr. Banaji cannot be either inherited or read by incorporation in the definition of 'Works contract' under the Tribunal Act. Mr. Patel submitted that the meaning given to the "canal" in the said Act is for the object and purposes of the said Act and has no connection with the present Tribunal Act, and therefore, said meaning cannot be applied for the purpose of construing the definition of 'Works contract' under the Tribunal Act. Mr. Patel submitted that since the award is made by the learned Sole Arbitrator under the Arbitration Act on the basis of the merits of the claim of the respondent and since the learned Sole Arbitrator was within his jurisdiction to pass such award, this Court may not interfere with the impugned award as also the order made by the Court in the Arbitration Execution Petition in exercise of the powers under Art. 226/227 of the Constitution of India. 6. 6. Having heard the learned Advocates for the parties, it appears that there is no dispute as regards the nature of the Works contract given to the respondent. The contract given to the respondent was of executing work of providing and laying underground pipelines to Block No. 31 of L.B.C.D. System below 5 cusecs Section No. 6 for estimated cost of Rs. 42,35,843/- as per the tender notice dated 11-10-1988. It appears from the tender papers that in connection with Karjan Dam Project, different works were to be executed including the work of canal and the work of providing and laying underground pipelines. The work of canal and work of laying pipelines are stated to be separately executed. The work of laying pipelines is mentioned at Item No. 8 under the heading of "SCOPE OF WORK UNDER THIS TENDER:--The present bid is for the work of providing U.G.PL. with pressure chamber for flood zone area." 7. The above work is not linked with the tender separately invited for canal work. 8. The definition of 'Works contract' in Sec. 2(1)(k) of the Tribunal Act reads as under: "2(1)(k) : "Works contract" means a contract made by the State Government or the public undertaking with any other person for the execution of any of its works relating to construction, repairs or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory or workshop or of such other work of the State Government or, as the case may be, of the public undertaking, as the State Government may, by notification in the Official Gazette specify, and include - (i) a contract made for the supply of goods relating to the execution of any of such works, (ii) a contract made by the Central Stores Purchase Organisation of the State Government for purchase of sale of goods." 9. Reading the definition, it could be said that it is wide enough to include any work relating to construction, repairs or maintenance of any building or superstructure, dam, weir, canal reservoir, tank, lake, road, well, bridge, culvert, factory or workshop or of such other work of the State Government. However, what is important is that the word "any" has the meaning attach to the work in connection with or for the purpose of completing different works named in the definition. However, what is important is that the word "any" has the meaning attach to the work in connection with or for the purpose of completing different works named in the definition. Therefore, if any work is to be executed for the construction, repair or maintenance of canal, the same shall stand included within the definition of 'Works contract' on expanded meaning of the word "any" used in the said definition. However, any other independent work which may be carried out either adjacent to the canal or beneath the canal or in the periphery of the canal but has no connection with the construction, repairs or maintenance of the canal and which itself is specified as distinct work, such work could not be linked with or related to the work of canal. 10. In the case of M/s. K. Raheja Development Corporation, AIR 2005 SC 2350 ], the definition of Works contract in Sec. 2(1)(v-i) of the Karnataka Sales Tax Act is considered by the Hon'ble Supreme Court which reads as under: "2(1)(v-i) "Works contract" includes any agreement for carrying out for cash, deferred payment or other valuable consideration, the building, construction, manufacture, processing, fabrication, erection, installation, fitting out, improvement, modification, repair or commissioning of any moveable or immovable property." In the context of the said definition, Hon'ble the Supreme Court has held and observed in Para 11 of the judgment as under: "It is thus to be seen that under the Karnataka Sales Tax Act the definition of the words "Works contract" is very wide. It is not restricted to a "Works contract" as commonly understood, i.e., a contract to do some work on behalf of somebody else. It also includes "any agreement for carrying out either for cash or for deferred payment or for any other valuable consideration, the building and construction of any moveable and immoveable property" (Emphasis supplied). The definition would, therefore, take within its ambit any type of agreement wherein construction of a building takes place either for cash or deferred payment, or valuable consideration. To be also noted that the definition does not lay down that the construction must be on behalf of an owner of the property or that the construction cannot be by the owner of the property. To be also noted that the definition does not lay down that the construction must be on behalf of an owner of the property or that the construction cannot be by the owner of the property. Thus, even if an owner of property enters into an agreement to construct for cash, deferred payment or valuable consideration a building or flats on behalf of anybody else it would be a Works contract within the meaning of the term as used under the said Act." 11. Similarly, in the case of Mrs. Kamini Malhotra (supra), the Madhya Pradesh High Court construed almost similar definition of 'Works contract' given in the present Tribunal Act. The definition of 'Works contract' in Sec. 2(i) of the M.P. Madhyasthan Adhikaran Adhiniyam reads as under: "'Works contract' - means an agreement in writing for the execution of any work relating to construction, repair or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory, work shop, power house, transformers or such other works of the State Government or Public undertakings as the State Government may by notification, specify in this behalf at any of its stages, entered into by the State Government or by an official of the State Government or public undertaking or its official for and on behalf of such public undertaking and includes an agreement for the supply of goods or material and all other matters relating to the execution of any of the said works." 12. While construing the said definition, the Madhya Pradesh High Court has held and observed in Paras 16 to 22 as under: "16. Since, as per Sec. 2(i) of the Adhiniyam 'Works contract' means an agreement in writing for the execution of any work specified therein; it is clear that a work to constitute and to be construed as 'Works contract' must be strictly covered by the works specified in the said definition and that no other work should be treated as 'Works contract'. 17. Learned Counsel for respondents in the above context submitted that, Water Treatment Plant, essentially consists of buildings and water tanks. It was, therefore, submitted that the name 'Water Treatment Plant' used in the contract between the parties, by itself would not exclude the said work executed by me appellant, from the category or definition of 'Works contract'. 17. Learned Counsel for respondents in the above context submitted that, Water Treatment Plant, essentially consists of buildings and water tanks. It was, therefore, submitted that the name 'Water Treatment Plant' used in the contract between the parties, by itself would not exclude the said work executed by me appellant, from the category or definition of 'Works contract'. It has been submitted that the Water Treatment Plant was construction of such buildings and tanks, the details of which are given in Annexure R-3. It was submitted in the above context that all the components of Water Treatment Plant basically consisted of building or storage tanks. In the above context photographs Annexure R-4 to Annexure R-9 are also filed, to indicate the nature of work and construction relating to the Water Treatment Plant executed by the appellant. 18. It has further been submitted by the learned Counsel for respondents that Sec. 2(i) of the Adhiniyam provides that, a 'Works contract' means an agreement in writing for the execution of any work relating to construction, repair or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, etc. Learned Counsel for respondents emphasised that thus me definition of 'Works contract' covers 'any' work relating to construction, repair or maintenance of 'any' building or superstructure, which clearly indicates that all buildings or superstructures or constructions are to be covered by the said definition of 'Works contract'. It was, therefore, submitted that, since the Water Treatment Plant basically includes construction of building and water storage plant, it was fully covered by the definition of 'Works contract'. 19. In the above context learned Counsel for respondents submitted that, the word 'any' has been explained in Black's Law Dictionary and it has been stated therein that the word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and subject-matter of statute. It is often synonymous with 'either', 'every' or 'all'. It is often synonymous with 'either', 'every' or 'all'. The Supreme Court in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787 had considered the meaning and purport of word 'any' in the context of Consumer Protection Act, 1986 and has quoted the above definition of the said word in Black's Law Dictionary and has observed that its meaning in a given statute depends upon the context and subject-matter of me statute. 20. In the instant case, it is clear that the word 'any' in S. 2(i) of me Adhiniyam appears to have a very wide spectrum, because it relates to the execution of any work relating to construction, repairs or maintenance of 'any' building or superstructure, tank, canal, reservoir, etc. The repetition of word 'any' in the said definition prior to the word 'work' as well as before the nature of construction, e.g. building, superstructure, etc., clearly indicates the intention of Legislature to provide for its wide amplitude and application. Therefore, it appears that the definition of 'Works contract' as given in Sec.2(i) of the Act, applies to all works of construction, repairs or maintenance of all types of buildings, superstructures, reservoirs, tanks, etc. 21. Therefore, all types of building, tanks whatever be its technical nomenclature, would be covered under the said definition of 'Works contract'. In Ghanshiam Das v. Debi Prasad, AIR 1966 SC 1998 the Supreme Court with reference to U.P. Zamindari Abolition and Land Reforms Act, observed: "The word building has not been defined in the Act and is, therefore, to be construed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. So construed according to the dictionary meaning, the existence of a roof is not always necessary for a structure to be regarded as a building, Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for useful purpose." 22. As noticed earlier, the use of word 'any' building etc. A large stadium or an open air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for useful purpose." 22. As noticed earlier, the use of word 'any' building etc. used in Sec. 2(i) of the Adhiniyam appears to be of a very wide connotation and 'any' work relating to building appears to have been intended to be included in the definition of 'Works contract'. As noticed earlier, in the instant case basic work constituting Water Treatment Plant, included construction of buildings as well as of storage tanks and reservoirs. Necessary ancillary, gadgets and implements for purification and cleansing of water would also have to be constructed. But such ancillaries would not change me basic nature of work to be executed by the appellant, which essentially was the construction of buildings and storage tanks. Therefore, the work undertaken to be executed by the appellant was covered within the meaning and definition of 'Works contract'." 13. However, so far as the facts of this case are concerned, even while taking the definition of 'Works contract' in the Tribunal Act to be of a very wide connotation as held and observed by the Hon'ble Supreme Court and by Madhya Pradesh High Court, the contract given for the work of laying underground pipelines to the respondent cannot be said to be in any way related to the work of canal. 14. At this stage, it is required to be noted that the State Government itself came out with Notification dated 29-9-2003 in exercise of the powers under Sec. 2(1)(k) of the Tribunal Act whereby the contract for work of pipelines of the State Government or as the case maybe of the public undertakings is specified as 'Works contract' for the purpose of the Tribunal Act. The Notification reads as under: "Section 2(1)(k) 2. [Notification No. GK/23/2003/ARB/2002/UOR/1000/H, dated 23-9-2003 - Gujarat Government Gaz., Exty., Part IV-B Extra No. 265, dated 29-9-2003, Page 265-1] = 2003 GSCS/1I/P. 905/H. 224 - In exercise of the powers conferred by clause (k) of sub-sec. (1) of Sec. 2 of the Gujarat Public Works Contract Disputes Arbitration Tribunal Act, 1992 (Guj. The Notification reads as under: "Section 2(1)(k) 2. [Notification No. GK/23/2003/ARB/2002/UOR/1000/H, dated 23-9-2003 - Gujarat Government Gaz., Exty., Part IV-B Extra No. 265, dated 29-9-2003, Page 265-1] = 2003 GSCS/1I/P. 905/H. 224 - In exercise of the powers conferred by clause (k) of sub-sec. (1) of Sec. 2 of the Gujarat Public Works Contract Disputes Arbitration Tribunal Act, 1992 (Guj. 4 of 1992), the Government of Gujarat hereby specifies the work of all types of pipeline of the State Government or as the case may be of the public undertaking as public undertaking works for the purposes of the said Act." 15. Learned A.G.P. Mr. Banaji though not disputed and could not have disputed the gazetted notification, however, submitted that the work of canal should be read for the present Act as defined in the Bombay Irrigation Act, 1879. The Preamble of the Bombay Irrigation Act reads that the Act was enacted to make provision for construction, maintenance and regulation of canals or the supply of water there-from and for the levy of rates for water so supplied in the Bombay Presidency. Section 3(1) of the said Act reads as under: "In this Act, unless there is something repugnant in the subject or context,- (1) "canal" includes - (a) all canals, channels, pipes and reservoirs constructed, maintained or controlled by any Government for the supply or storage of water; (b) all works, embankments, structures and supply and escape- channels connected with such canals, channels, pipes or reservoirs and all roads constructed for the purpose of facilitating the construction or maintenance of such canals, channels, pipes or reservoirs; (c) all water-courses, drainage-works and flood embankments as hereinafter respectively defined; (d) any part of a river, stream, lake, natural collection of water or natural drainage-channel, to which the State Government may apply the provisions of Sec. 5, or of which the water has been applied or used before the passing of this Act for the purpose of any existing canal; (e) all land belonging to the Government which is situate on a bank of any canal as hereinbefore defined, and which has been appropriated under the orders of any Government for me purposes of such canal." 16. It appears that the intent and purpose of the said Act was basically for the supply or storage of water. It appears that the intent and purpose of the said Act was basically for the supply or storage of water. In the definition of canal, the pipes are included with channels, reservoirs and all other works stated therein whereas in the present case, me contract awarded to the respondent was of providing underground pipelines with pressure chamber for flood zone area. Considering the nature of work in the present case vis-à-vis the works specified for canal in the Bombay Irrigation Act, it is not possible to construe the work of providing underground pipelines given to the respondent in any way related to work of canal so as to mean that the contract given to the respondent falls within the definition of 'Works contract' in the Tribunal Act. 17. Even otherwise, when there is no ambiguity in the definition of 'Works contract' in the Tribunal Act, it is not permissible to inherit or take help of the definition given in the other statute to construe the definition of 'Works contract' in the Tribunal Act. 18. It clearly appears from the nature of work executed by the respondent under the contract that the same had no relation with the work of canal and it would not fall within the definition of 'Works contract'. If such work of laying underground pipelines was to be taken as part of the canal work or relating to canal work, it was not necessary for the Government to distinguish the said work from the work of canal and to invite the separate tender for the same. Even apart from this, it was also not necessary for the Government to come out with notification in the Official Gazette in exercise of the powers under Sec. 2(1)(k) itself for specifying the work of pipelines as the work for the purpose of the Tribunal Act so as to include within the definition of 'Works contract'. In such view of the matter, it cannot be said that the Sole Arbitrator had no jurisdiction to decide the dispute arising out of the contract given to the respondent for laying underground pipelines. 19. Apart from the above aspect of the matter, in the facts of the case, the petitioners are not entitled to maintain the present petition under Arts. 19. Apart from the above aspect of the matter, in the facts of the case, the petitioners are not entitled to maintain the present petition under Arts. 226/227 of the Constitution of India for challenging the award made by the learned Sole Arbitrator under the Arbitration Act as well as to challenge the order made by the Court in the Arbitration Execution Petition. 20. It is required to be noted that after the arbitrator was appointed in the month of August, 1999, the petitioners filed Regular Civil Suit No. 216 of 2000 praying to declare that the Sole Arbitrator had no power to adjudicate dispute between the petitioners and the respondent on the ground that the matter was required to be adjudicated by the Tribunal under the Tribunal Act. In such suit, the respondent preferred application under Order 7, Rule 11(d) of the Code of Civil Procedure for rejection of the plaint on the ground that the work awarded to the respondent did not fall within the definition of 'Works contract', and therefore, Sole Arbitrator had jurisdiction under the Arbitration Act. The said application was allowed by the 8th Jt. Civil Judge (S.D.) Vadodara vide order dated 16th October, 2002. This order was not carried further and became final. 21. The Sole Arbitrator then proceeded with the arbitration proceedings under the Arbitration Act and made award dated 21-5-2000. The petitioners have not challenged the said award under Sec. 34 of the Arbitration Act. In the order dated 21st October, 2005 passed by the Presiding Officer, F.T.C. No. 9, Bharuch in Arbitration Execution Petition No. 359 of 2002, it is observed that the petitioners have failed to raise any objection against the award or even during the arbitral proceedings held by the Sole Arbitrator and therefore, the award has become final as per Sec. 35 and liable to be enforced as per Sec. 36 of the Arbitration Act. In such fact situation, the petitioners cannot be permitted to challenge the award made by the Sole Arbitrator almost after a period of five years under the guise of challenging the order dated 21-10-2005 made by the executing Court. 22. In the case of Union of India v. Popular Construction Co., reported in, 2001 (8) SCC 470 , relied on by Mr. Patel, the Hon'ble Supreme Court has held and observed in Paras 14 to 16 as under: "14. 22. In the case of Union of India v. Popular Construction Co., reported in, 2001 (8) SCC 470 , relied on by Mr. Patel, the Hon'ble Supreme Court has held and observed in Paras 14 to 16 as under: "14. Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Sec. 34 to challenge an Award is absolute and unextendable by Court under Sec. 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need "to minimise the supervisory role of Courts in the arbitral process." 6. This objective has found expression in Sec. 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: "5. Extent of judicial intervention:--Notwithstanding anything contained in any other law for the time being in force, in matter governed by this Part, no judicial authority shall intervene except where so provided in this Part." 15. The 'Part' referred to in Sec. 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I, and is therefore, subject to the sweep of the prohibition contained in Sec. 5 of the 1996 Act. 16. Furthermore, Sec. 34(1) itself provides that recourse to a Court against an arbitral award may be made only by an application for setting aside such award 'in accordance with' sub-sec. (2) and sub-sec. (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Sec. 34, sub-sec. (3) would not be an application "in accordance with" that sub-section. Consequently, by virtue of Sec. 34(1), recourse to the Court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Sec. 34 is emphasised by the provisions of Sec. 36 which provide that - "where the time for making an application to set aside the arbitral award under Sec. 34has expired.......the award shall be enforced and the Code of Civil Procedure, 1908 in the same manner as if it were a decree of a Court." This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the Court was required to "proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow". Now the consequence of the time expiring under Sec. 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Sec. 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Court's powers by the exclusion of the operation of Sec. 5 of the Limitation Act." 23. In view of what is discussed above, other judgments cited by Mr. Patel on the aspect of permissibility of raising issue of jurisdiction before the Arbitrator, the effect of raising no objection as regards jurisdiction of the arbitrator and availability of remedy to challenge the award under Sec. 34 of the Arbitration Act are not required to be considered. For the reasons stated above, the petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.