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Judgment
The Court : This is an application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside of the arbitral award dated
February 06, 2014 passed by an arbitrator. The petitioner has also prayed for stay of execution application, EC No. 22 of 2017 pending before the
learned single Judge of this Court.
It is, however, submitted by Mr. Banerjee, learned advocate for the present respondent no.1, the award holder that much before filing of this
application the respondent no.1 award holder filed three execution applications, being EC No. 526 of 2014, EC No. 292 of 2015 and EC No. 699 of
2015 respectively and all the said applications were disposed of by a learned single Judge of this Court after passing various orders towards execution
of the award passed by the arbitrator.
Mr. Banerjee strongly contended that when the said execution applications were disposed of by a learned Single Judge after being satisfied with
service of the award by the arbitrator on the pesent petitioners, this application filed after expiry of the statutory period of 120 days from the date of
receipt of the award is not maintainable. According to the respondent no.1, the petitioners filed this application by suppressing the facts relating to
the above execution applications.
Mr. Singhania, appearing for the petitioner submitted that since the arbitration proceeding in the present case commenced before coming into effect of
the amending Act 3 of 2016, the amended provisions inserted in sub-sections (2) and (3) of section 36 of the Arbitration and Conciliation Act, 1996 are
not applicable in this case. He, therefore, submitted that the petitioner is entitled to obtain an unconditional stay of the execution proceeding being
EC No. 22 of 2017.
On the other hand, Mr. Banerjee appearing for the respondentno.1Â argued that even if for the sake of argument it is admitted that this application is
maintainable then in view of the decision of the Supreme Court in the case of Board of Control for Cricket in India Versus Kochi Cricket Pvt. Ltd.
and Ors. reported in AIR 2018 SC 1549, the amended provisions inserted by sub-sections (2) and (3) in section 36 of the Act of 1996 are wellÂ
applicable in respect of the arbitral proceedings.
In reply, Mr. Ghosh submitted that since the present application was filed on February 16, 2018 before the delivery of the judgement by the Supreme
Court in the case of Board of Control for Cricket in India (supra), the said decision is not applicable in this case.
After considering the facts of the case I find that before considering the prayer of the petitioner for stay of the pending execution application, the point
of maintainability of this application on the ground of delay is to be decided first. Accordingly, let the respondent no. 1 file its affidavit-in-opposition
dealing with the point of maintainability of this application alone, within a week from date; reply, if any, thereto be filed within a week thereafter. Let
this application appear in the list, under the heading ‘Adjourned Motion (Arbitration)’ on June 26, 2018 for deciding the point of maintainability of
this application.