ORDER :

1. The present petition under Article 227 of the Constitution of India has been brought seeking relief for setting-aside the order dated 03.11.2018, passed by the District Judge, Korba, in Execution Case No. 6/2011 and for issuance of direction to set-off the claims of the petitioner No.1 in another pending execution proceeding.

2. Facts of the case in brief are these that the respondent is a financial company. The petitioner No.1 has borrowed from the respondent for purchase of a vehicle vide agreement No.PB001613H and the petitioner No.2 is the guarantor. The vehicle purchased by the petitioner No.1 was stolen. Later on after its recovery, the same has been obtained on supurdnama by the petitioner No.1. Respondent then took over the possession of the vehicle from the petitioner No.1 on 19.04.2006 and sold the same without notice to the petitioners. Subsequent to which, the complaint has been filed by the petitioners, before the District Consumer Dispute Redressal Forum, Korba. The respondent then initiated an arbitration proceeding concealing the fact of the pendency of the proceeding before, the District Consumer Dispute Redressal Forum, Korba. Arbitration proceeding has been concluded ex-parte vide award dated 22.07.2008. The respondent has filed an application under Section 36 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act, 1996”) for execution of award dated 22.07.2008.

3. Complaint case filed by the petitioner, Case No. C.C./49/2006 was dismissed by the District Consumer Dispute Redressal Forum, Korba by order dated 04.03.2014. This order was challenged by the petitioners, before the State Consumer Dispute Redressal Commission, Raipur in F.A./14/227, which has been decided vide order dated 25.07.2015 by allowing the appeal and directing the respondent to make payment of damages and compensation.

4. Respondent then has preferred a revision petition, before the National Consumer Dispute Redressal Commission, New Delhi, which was registered as Revision Petition No. 3209 of 2015, which is pending. There is direction of the National Consumer Dispute Redressal Commission, to deposit the entire amount of award, which has to be kept in fixed deposit in any Nationalized Bank till the disposal of the revision petition. The petitioners have also filed a petition for setting-aside the arbitration award and they filed an application under Section 36 (2) of the Act, 1996 praying for order of stay of the arbitral award on which, the learned District Judge has passed the impugned order.

5. It is submitted by the learned counsel for the petitioners that there are two awards present for execution. The application filed for setting-aside the arbitration award, against the petitioners, is pending, therefore, the stay order in the execution proceeding on the arbitration award should have been granted by the trial Court. Further the State Consumer Dispute Redressal Commission, Raipur, has granted damages and compensation in favour of the petitioners, which is kept in fixed deposit by the order of the National Consumer Dispute Redressal Commission, the same may be adjusted in the execution of the award against the petitioners. Hence, the prayer has been made for passing of appropriate orders.

6. Learned counsel for the respondent opposes the petition and the submissions made in this respect. It is submitted that the arbitral award in favour of the respondent is dated 22.07.2008 and the execution proceeding on this award is pending since 17.02.2011. The petitioners have filed the application under Section 34 of the Act, 1996, after about five years from the date they appeared in the execution proceeding, which is registered as MJC No.112 of 2018, hence, the application under Section 34 of the Act, 1996 is clearly time barred. Provisions under Section 36 (2) of the Act, 1996 clearly provides that filing of an application under Section 34 of the Act, 1996 by itself would not render that award unenforceable,