The provisions of Order XLI, Rule 1 of the Code of Civil Procedure, 1908, which require the deposit of the awarded sum as a condition precedent for filing an appeal against a money decree, do not apply to appeals from arbitral awards.

Ashim Kumar Banerjee, J.

This appeal would arise out of an order of the learned District Judge declining to interfere with the award published by the arbitrator. Facts would depict, the National Highway Authority of India, the appellant above named, entrusted the work to the respondent for construction of widening to 4/6 lanes and upgrading of the existing two lane roads in NH-60 in the State of West Bengal from Laxmannath to Kharagpur. The work would value rupees three hundred twenty nine crores. The dispute arose between the parties that were referred to Dispute Review Board where the same could not be resolved. It was thus referred to the Arbitral Tribunal. The Tribunal rejected the claims of the respondent save and except claim no.1 and 3. The Tribunal awarded rupees forty three crores fifty six lacs twenty nine thousand in respect of claim no.1 together with interest and rupees five crores twenty lacs one hundred forty against claim no.3 together with interest thereon. The National Highway Authority challenged the award before the Court of District Judge, Midnapur (Paschim) that was heard by the Additional District Judge (4th Court), Midnapur (Paschim). The learned Judge dismissed the application on contest vide judgment and order dated April 26, 2011. The Highway Authority challenged the said decision before us by the instant appeal that came up for admission before us on August 3, 2012. As a statutory appeal, the appeal was to be heard by us after admission. Since the appeal was in form that would attract the order of admission. The question was however, raised by the respondent, since the award would, in effect, a money decree that could be executed through the process of execution contemplated under the Code of Civil Procedure, the appeal would attract deposit of the awarded sum in Court as a pre-requisite under Order XLI Rule 1. Such contention was however, disputed by the appellant. The appellant contended that it was a statutory appeal and the Court would not have any other option but to admit it and dispose it of on meit. The provisions of Order XLI, Rule1 of Rule 5 would not attract.

2. We heard Mr. Jaydeep Kar, learned counsel appearing for the appellant and Jayantra Mitra, learned senior counsel appearing for the respondent. Mr. Kar relied on Sections 35, 36 and 37 of the Arbitration and Conciliation Act, 1996 to contend that an award could only be enforced after reaching finality on the same. The provisions would make the award enforceable after three months of its publication or after the application for setting aside was dismissed. According to Mr. Kar, since the application for setting aside was dismissed, the appeal being a continuation of the original proceeding would attract embargo as contemplated under Section 36.

3. To support his contention he relied on the following decisions :

i) Shiv Shakti Coop. Housing Society, Nagpur –VS-Swaraj Developers and Ors. (2003 Volume-VI Supreme Court Cases Page-659)

ii) National Aluminium Co. Ltd. –VS-Pressteel and Fabrications Pvt. Ltd. And Anr. (2004 Volume-I Supreme Court Cases Page-540)

iii) Centrotrade Minierals and Metal Inc. –VS-Hindustan Copper Limited (2006 Volume-XI Supreme Court Cases Page-245)

iv) Malwa Strips Private Limited –VS-Jyoti Limited (2009 Volume-II Supreme Court Cases Page-426)

4. On the other hand, Mr. Mitra relied on Order XLI, Rule 1 and 5 to contend, since it was a money decree that would attract deposit of money as condition precedent. He would however, fairly concede as he does in all cases, such deposit would require, in case, this Court would stay the operation of the award. He however, conceded, in case deposit was not made, the appeal would not, by itself, attract order of dismissal. However, the respondent would be entitled to proceed with execution. He relied on the following decisions :

i) Himachal Road Transport Corporation Shimla, -VS-Sushila Devi and Ors. (All India Reporter 1986 Himachal Pradesh Page-78)

ii) ITI Ltd. –V