1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ARBITRATION APPEAL NO. 31 OF 2007 Union of India .......Appellant versus M/s. Swastic Associates........ Respondents. Mr. S.R. Rajguru i/b Ms. Bharati Mahant for the Appellant Mr. Amogh Parlikar for the Respondent no.1. CORAM: A.P. DESHPANDE, J. DATED : 19th September, 2008. P.C.: 1. Heard the learned counsel for the parties. Taken up for final hearing by consent of parties. 2. The respondent herein moved an application for appointment of an Arbitrator as back as on 24th October 1993. Thus the arbitraral award which is subject matter of the dispute in this proceedings has been passed under the Arbitration Act of 1940. After passing of the award, the present appellant/State Government filed an application before the District and Sessions Judge, Pune. The application does not make a mention about the same being filed under which act i.e. Old act or the new act. 2 There is no mention about the section under which the application has been filed. Be it as it may, though the application was filed under the old act, the same was considered by the District and Sessions Judge as the application under section 34 of the new Act. The Court rejected the said application and aggrieved thereby the present appellant filed an appeal in this court which came to be disposed of by consent of parties after setting aside the impugned order passed by the District & Sessions Judge. The order passed by the learned Single Judge dated 14th August 2006 does not refer to the ground on which the parties had consented for setting aside the impugned order. Even after remand, yet again the District and Sessions Judge committed the same mistake and treated the application as one filed under the new Act. By the impugned order, the application moved for setting aside of the award by the appellant has been rejected. 3. Both the learned counsel appearing for the respective parties do not dispute that the matter is under the old act and ought to be governed by the old act and not new act. It is also undisputed that the court below has treated the application as having been filed under section 34 of the new act. Thus it is yet again consented that the impugned order is unsustainable and same need to be set aside. However, the learned counsel for the respondent has contended that the application filed before 3 the District & Sessions Judge was not maintainable in law as the jurisdiction to try the application for setting aside the award vests with the Civil Judge Senior Division under the old act. The appellant has indisputably filed the application before the court of District & Sessions Judge, Pune. Submission made by the learned counsel for the respondent is to the effect that the said application filed by the appellant/applicant for setting aside the award has been filed before a wrong forum and thus the same is liable to be rejected. 4. Per contra the counsel for the appellant submits that the said mistake would not be fetal and the concerned court can assign the case to the court having jurisdiction. The learned counsel for the respondent has further submitted that if the filing of application before the District & Sessions Judge for setting aside the award need to be treated as non-est. He further submits that, the application was barred by limitation. Leaving all questions open to be raised before the court below, I set aside the impugned order dated 30th June 2007 passed by the court of Extra Joint District Judge, Pune in Arbo Misc. Application No. 236/99 and remand the matter back to the concerned court for fresh consideration and decision in accordance with the law. It is made clear that all the contentions raised by the respective parties are left open to be agitated before the Court below including the objection touching jurisdiction and limitation. In the 4 result the appeal is partly allowed and disposed of. (A.P. DESHPANDE, J.)