CHS.798-10 IN EXA.375-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.798 OF 2010 IN EXECUTION APPLICATION NO.375 OF 2010 IN ARBITRATION CASE NO.01/2009-2010 V. Harkishandas .. Plaintiff versus M/s.Body Thirst .. Defendants Mr.Lalit Jain i/by Chandrakala Salunke for the plaintiff. Mr.Cyrus Ardeshir a/w Ms.Jyoti Ghag i/by M/s.Thakore Jariwala & Associates for the defendants. CORAM : R.S.MOHITE, J. DATE : 19th July 2010. P.C.: . This is a chamber summons taken out by the original defendants for lifting the attachment as levied pursuant to the impugned award dated 29th December 2009. The award in question dated 29th December 2009 is an award for payment of money and has been admittedly passed under Arbitration and Conciliation Act, 1996. CHS.798-10 IN EXA.375-10 2 2. The facts indicate that after the award was passed on 29th December 2009, a copy of the same was received by the defendant on 4th January 2010. Thereafter, after the expiry of ninety days the plaintiffs filed the execution application on 20th March 2010. 3. While the execution application was pending, the defendant challenged the arbitration award by filing an application under section 34 of the Arbitration and Conciliation Act, 1996. Alongwith this application, a separate application was filed for condonation of delay. Since this application was filed within the further period of thirty days as provided under section 34(3) proviso of the aforesaid Act, for reasons shown, the Court on hearing the application under section 34(3) of the said Act was pleased to condone the delay and the main application is still pending. 4. It is contended that on behalf of the defendants that since their application under section 34 was filed within the permitted period of four months, and since this rendered the arbitration award as unexecutable, the attachment ought to be raised and the chamber summons ought to be allowed in terms of prayer clause (a). Section 34(3) is in the following terms: CHS.798-10 IN EXA.375-10 3 “34.(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 applicant 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.” Section 36 of the said Act is in the following terms: “36. Enforcement.- Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.” CHS.798-10 IN EXA.375-10 4 5. In this connection it is seen that the Apex Court in the case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department & Ors reported in (2008) 7 Supreme Court Cases 169 has observed as under: “... It is to be noticed that powers under section 34 of the said Act can be exercised by the Court only if the aggrieved party makes an application. The jurisdiction under section 34 of the said Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside arbitral award, has to be made is not unusually long. ...” 6. From the aforesaid observations it is clear that the Supreme Court has taken the period for making an application for setting aside an arbitral award as four months which includes the extended period of thirty days contemplated by the proviso to section 34(3) of the aforesaid Act. 7. On the question as to whether the term “enforcement” appearing in section 34 of the Act covers the same field as the term “execution” and as to whether the term “enforced” would cover the same field as the word CHS.798-10 IN EXA.375-10 5 “executed”, reliance has been placed on a judgment of the Apex Court in the case of National Aluminium Co Ltd Vs. Pressteel and Fabrications (P) Ltd & Anr reported in (2004) 1 Supreme Court Cases 540 wherein in paragraph 10 the Apex Court has observed as under: “.... But then we noticed from the mandatory language of section 34 of the 1996 Act, that an award, when challenged under section 34 within the time stipulated therein, becomes unexecutable. ....”(emphasis provided) 8. The Apex Court, therefore, seems to have given the same meaning to the word “enforced” as to the word “executed”. This being the situation, any execution proceeding filed before the period of 120 days expires would not be maintainable. In these circumstances, the chamber summons is made absolute in terms of prayer clause (a). The learned advocate for the plaintiff states that without prejudice to his rights to make an application for an interlocutory order pertaining to preservation of property, he would like to withdraw his execution application with liberty to file a fresh execution application in case the arbitration petition under section 34 is dismissed. The application is allowed to withdraw the execution application subject to such CHS.798-10 IN EXA.375-10 6 liberty and also without prejudice to his rights to make an application for grant of interim relief in the application under section 34 of the aforesaid Act. The chamber summons and execution application stand disposed off accordingly. (R.S.MOHITE, J)