Advocates appeared :
For the Appellant : Kunal Thakre
For the Respondent : Siddharth Sharma

JUDGMENT PURUSHAINDRA KUMAR KAURAV, J. : – This Arbitration Appeal under section 37 of the Arbitration and Conciliation Act 1996 (for short, hereinafter referred to as the “Act of 1996”) takes exception to the impugned order dated 20-12-2019, passed by the Commercial Court and 19th Additional Sessions Judge, Bhopal (M.P.) allowing an application under section 34 of the Act of 1996, preferred by the respondent, whereby, the original award dated 8-7-2011 pronounced by the sole Arbitrator, appointed under the provisions of the Act of 1996, has been set aside.

2. In view of the law laid down by the Hon’ble Supreme Court in the matter of Madhya Pradesh Rural Road Development Authority and another vs. M/s L. G. Chaudhary Engineers and Contractors, (2018) 10 SCC 826, learned counsel appearing for the appellant does not dispute the applicability of the provisions of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (for short, hereinafter referred to as the “Act of 1983”), over the subject-matter of the present dispute. However, his singular grievance is that the award, passed under the provisions of the Act of 1996 by the Arbitral Tribunal before decision of the Hon’ble Supreme Court in the case L. G. Choudhary (supra), had attained finality and the same cannot be interfered with only on the ground of lack of jurisdiction.

3. The brief facts for adjudication of the present appeal are that on 12-12-2005, an agreement was executed between the appellant and the respondent for the work of rehabilitation and strengthening of Khargone – Barwani road (SH-26) Project Road No. 19 and rehabilitation and strengthening of Khargone – Biston road (SH-31) Project Road No. 20 for a sum of Rs. 58,25,28,228/-. On 31-3-2009, the work was completed. However, on 3-11-2009 a request made by the appellant for reimbursement of the extra cost incurred due to enhancement of entry tax, was rejected which gave rise to him to invoke the arbitration clause. After nomination of Arbitrators by both the parties, the Presiding Arbitrator was appointed by the nominated Arbitrators, and finally, award dated 8-7-2011 was pronounced wherein a sum of Rs. 1,03,55,187/- was awarded in favour of the appellant.

4. The respondent preferred an application under section 34 of the Act of 1996 for setting aside the arbitral award before the Court below, which has been allowed on the ground that the award passed by the Arbitration Tribunal under the provisions of the Act of 1996 is without jurisdiction and the subject-matter of the dispute falls within the definition of “Works Contract”, therefore, it is only the statutory Tribunal created under the provisions of the Act of 1983 which has the exclusive jurisdiction to deal with the subject-matter.

5. Shri Kunal Thakre, learned counsel for the appellant, has made following submissions to substantiate his arguments as noted in para 2 above :

(i) The respondent has not raised any objection with respect to applicability of the Act of 1983, or the non-applicability of the Act of 1996 before the Arbitration Tribunal, therefore, the objection with respect to lack of jurisdiction, cannot be raised at subsequent stage under section 34 of the Act of 1996. (ii) The law laid down by the Hon’ble Supreme Court in the matter of VA Tech Escher Wyass Floverl Limited vs. Madhya Pradesh State Electricity Board and another, (2011) 13 SCC 261 dated 14-1-2020 was applicable on the date of invoking the arbitration clause under the Act of 1996, which clearly says that the Act of 1983 only applies where there is no arbitration clause, but it stands impliedly repealed by the Act of 1996, where, there is an arbitration clause. The said legal position remained in force until 24-1-2012, when the law laid down in the case VA Tech (supra) was declared per incuriam in the subsequent decision by the Hon’ble Supreme Court in the case of Madhya Pradesh Rural Development Authority vs. L. G. Chaudhary Engineers and Contractors, (2012) 3 SCC 495. (iii) The large