Research › Search › Judgment

Punjab High Court · body

2019 DIGILAW 2815 (PNJ)

State of Punjab v. Jai Bhushan Malik

2019-10-22

JAISHREE THAKUR

body2019
Judgment Ms. Jaishree Thakur, J. (Oral):- CM-21500-CII-2019 This is an application for preponing the hearing of the appeal, which is now listed for 21.02.2020. For the reasons mentioned in the application, the same is allowed and the appeal is taken up for hearing today. FAO-5135-2018 1. This is an application that has been filed seeking to challenge the order dated 17.05.2018 passed by the Addl. District Judge, Sangrur whereby, the objections filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) for setting aside the award dated 26.10.2016 which has been dismissed primarily on the ground that there was non-compliance of provisions of Section 34(5) of the Act. 2. In brief, the facts are that on account of a dispute that arose between the parties, the matter was referred to Arbitrator in terms of the agreement entered into between the parties. Respondent No.1 preferred a claim petition before the Arbitrator for recovery of its dues for work done, which claim was allowed. Against the said award, the appellant herein filed objections under Section 34 of the Act before the Addl. District Judge, Sangrur. Notice was issued and matter was contested between the parties. Respondent No.1 herein took the preliminary objection that there was noncompliance of provisions of Section 34(5) of the Act, which stipulates the service of prior notice upon the other party and filing of affidavit endorsing such compliance, before filing objections under Section 34 of the Act. The Addl. District Judge, Sangrur, without going into the question as to whether the objections were sustainable, dismissed them holding that there was noncompliance of Section 34(5) of the Act, meaning thereby, no prior notice had been served upon respondent No.1. Aggrieved against the said order, the instant appeal has been filed. 3. Mr. Sandeep Singh Deol, learned DAG Punjab for the appellant would submit that the impugned order, so passed, is liable to be set aside since compliance of Section 34(5) of the Act is not mandatory as held by the Supreme Court in the case of State of Bihar and others vs. Bihar Rajya Bhumi Vikas Bank Samiti, 2018(5) RCR (Civil) 332. 4. Per contra, Mr. 4. Per contra, Mr. Akash Singla, learned counsel for respondent No.1 urges that there is no infirmity in the order so passed, however, he is not able to dispute that the judgment referred to by counsel for the appellant has categorically held that Section 34(5) of the Act is a procedural provision and infraction of which would have no consequence. 5. I have heard counsel for the parties and in view of the fact that in the case of State of Bihar and others vs. Bihar Rajya Bhumi Vikas Bank Samiti (supra) the Supreme Court that has held that Section 34(5) of the Act is a procedural provision and that compliance of the same is not mandatory, the impugned order is set aside with a direction to the Addl. District Judge, Sangrur to decide the matter on merits. Consequently, the appeal is allowed. The parties are directed to appear before the concerned court on 05.12.2019.