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2015 Supreme(Mad) 2944
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. RAVICHANDRABAABU, J.
V.Raghavan – Appellant
Vs.
Dr.R.Venkitapathy Partner – Respondent
A.No.2708 of 2014 and A.No.274 of 2015 in O.P.No.269 of 2014, A.No.2708 of 2014
Decided On : 22.09.2015
Advocate Appeared:
For Applicant : Mr.T.R. Rajagopalan, Senior Counsel for Mr.T.S. Baskaran
For Respondents:
Mr.Vijay Narayanan, Senior Counsel for Mr. R. Parthiban for R1
Mr. T.V. Ramanujam, Senior Counsel for Mr. S. Elambharathi for R2 and R3
Headnote:
Arbitration and Conciliation Act – Section 34 – Civil Procedure Code, 1908 – Section 151 – Condonation of Delay – Application is filed for grant of stay of further proceedings in pursuant to the interim award passed by the Arbitral Tribunal in regard to the firm “Dinamalar”, pending disposal of the main O.P – Challenging the said order, the 1st respondent in the main O.P. sought to file an appeal before the Division Bench of this court, however, with a delay of 114 days – Seeking condonation of such delay, M.P.No.2 of 2014 in O.S.A.SR.No.82166 of 2014 was filed – Held, when an award is challenged under Section 34 within the stipulated time therein, it becomes unexecutable and that there is no discretion left with the Court to pass any interlocutory order in regard to the said award except to adjudicate on the correctness of the claim made to the applicant therein. – Therefore, it is clear that the bar made under section 36 r/w section 34 of the said Act is only in respect of the executability of the award by any one of the parties to the proceedings. – In a given case, if the Tribunal has passed only an interim award and the final award is yet to be passed, such proceedings before the very same Tribunal in passing the final award cannot be stalled merely because an application filed under section 34, challenging such interim award is pending. 2014 (4) RAG 842 (Bombay) Afcon Infrastructure Ltd. vs. The Board of Trustees of the Port of Mumbai) is relied on by the learned senior counsel for the petitioner again to contend that the interim award cannot be executed. – Court have already pointed out that there is a difference between the executability of the award and staying further proceedings before the Arbitral Tribunal to pass the final award in pursuant to an interim award passed already. – Hence, the above decision also does not help the petitioner in any manner. – Needless to say that the finality before the Arbitral proceedings is to be arrived without any further delay in view of the specific time frame fixed by the Apex Court in the very same matter as stated supra and also on the reason that the parties are litigating the matter for a long time. – Court is of the view that the applicant/petitioner is not entitled for any interim stay as sought for in the application. – Order Accordingly
Application No.2708 of 2014 is filed for grant of stay of further proceedings in pursuant to the interim award dated 15.03.2014 passed by the Arbitral Tribunal in regard to the firm “Dinamalar”, pending disposal of the main O.P.No.269 of 2014.
2. O.P.No.269 of 2014 is filed for setting aside the interim arbitration award dated 15.03.2014 passed by the learned Arbitrators. In Application No.2708 of 2014, this Court by an order dated 30.04.2014, after hearing the counsels appearing on either side, passed an order as follows:
3. Pending further hearing in this matter, the arbitral proceedings shall go on insofar as the following issues are concerned:
(i) valuation of land, building and machines of the firm;
(ii) auditors for auditing the accounts of the firm for the period after dissolution, will be issued shortly.
4. As regards the issue that “the business value of each of ten editions and of the Dinamalar firm as a whole” will be kept in abeyance until further orders of this court and will be considered by this Court on the next hearing (i.e.) 3.6.2014. The parties are directed to comply with the other directions issued in the minutes of the 86th Meeting of the Tribunal held on 28.3.2014.
3. Challenging the said order, the 1st respondent in the main O.P. sought to file an appeal before the Division Bench of this court, however, with a delay of 114 days. Seeking condonation of such delay, M.P.No.2 of 2014 in O.S.A.SR.No.82166 of 2014 was filed. The Division Bench dismissed the application as well as the Appeal as withdrawn by its order dated 13.10.2014, however, by observing as follows:
"On hearing the learned Senior counsel for the appellant, we are not satisfied that sufficient cause is shown for condonation of delay of 114 days in filing the appeal.
2. Learned Senior Counsel, faced with this position, submits that he may not press the appeal, but there are two aspects of concern;
(a) Despite the impugned order making it clear that the prematory order will not in any manner affect the following;
(i) Valuation of land, building and machines of the firm,
(ii) auditors for auditing the accounts of the firm for the period after dissolution, will be issued shortly. the arbitral proceedings are not proceeding further on account of the stand of some of the respondents that till the issue of interim order is decided, nothing should happen.
(b) There is an objection in law to the interim order passed by the learned Single Judge, in view of the Judgment of the Supreme Court in National Aluminium Co., Ltd., Vs. Presstel and Fabrications (P) Ltd., and another reported in (2004) 1 SCC 540).
3. On the aforesaid aspects, we are of the view that qua the first aspect, the interim order is clear , in that the arbitral tribunal is bound to proceed with the matter against which there is no interdict especially in view of the time line which had been laid down by the Honourable Supreme court for conclusion of the Arbitration proceedings in Special Leave to Appeal (Civil) No.14417 of 2013, and the mere fact that one party objects contrary tot he order passed in "the impugned order" is no ground for the arbitration not to proceed.
4. As far as the second aspect is concerned, it is open to the appellant to move the learned Single Judge in the behalf.
5. The application accordingly stands dismissed as withdrawn in terms of the aforesaid. The appeal is dismissed as withdrawn."
4. Thus, in view of the liberty granted by the Division Bench in the above referred order for the appellant therein to move this Court, insofar as the objection raised with regard to the grant of interim order pending O.P., the first respondent filed Application No.274 of 2015 for vacating the interim order dated 30.04.2014 passed in Application No.2708 of 2014 in O.P.No.216 of 2014
5. Since the issue involved in these applications is with limited scope which does not require elaborate consideration of facts and circumstances of the whole matter, I am not going into the fact
