OIPD-22 IN THE HIGH COURT AT CALCUTTA ORIGINAL SIDE (Intellectual Property Rights Division)

AP/899/2011 IA NO: GA-COM/4/2025 STATE OF WEST BENGAL VS CAB ENGINEERING PRIVATE LIMITED BEFORE:

The Hon'ble JUSTICE RAVI KRISHAN KAPUR Date : 22nd April, 2025.

Appearance:

Mr. Sakya Sen, Sr. Adv.

Mr. Sabyasachi Sen, Adv. Ms. Noelle Banerjee, Adv.

Mr. Paritosh Sinha, Adv.

Mr. Arindam Mandal, Adv. Ms. Swagata Ghosh, Adv.

….for the State The Court:

This is an application seeking recalling of an order dated 28th March, 2024. By the order dated 28th March 2024, this Court had recalled an earlier order of a Coordinate Bench dated 19th December 2018 (prior to the Amendment Act, 2015) whereby the award-debtor had been granted an unconditional stay of an award dated 27th June, 2011.

Briefly, by an award dated 27th June, 2011, the award-debtor was directed to pay a principal amount of approximately Rs. 2 crores to the award- holder. Upon passing of the award, the award-debtor had filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 and in view of the then prevalent law an unconditional stay of the award was granted by a Co-

ordinate Bench.

Subsequently, in view of Amendment Act, 2015, the award-holder sought for recalling of the order dated 19 December 2018. In such circumstances, by an order dated 28th March, 2024 this Court, had directed as follows:

“This is an application for recalling of an order dated 19 December, 2018 whereby a Co-ordinate Bench had granted an unconditional stay of an award dated 27 June, 2011.

It is submitted on behalf of the petitioner that in view of the amended provisions of the Arbitration and Conciliation Act, 1996 and different pronouncements of the Hon’ble Supreme Court, the judgment debtor is now obliged to secure the entirety of the awarded amount. It is submitted on behalf of the award debtor State that they are ready and willing to deposit the entire principal amount of Rs.2,03,37,231/-. Insofar as the interest component is concerned, both parties seek an opportunity to take instructions.

In view of the amended provisions of section 36(2) of the Act, the order dated 19 December, 2018 stands recalled.

The State is directed to deposit the entire principal amount of Rs.2,03,37,231/- by way of a cash with the Registrar, Original Side. If such amount is deposited within four weeks from date, the Registrar, Original Side shall create a fixed deposit of the same amount with any nationalized bank until further orders of Court.

In the meantime, there shall be an order of stay of the award dated 27 June, 2011 until further orders of Court. In default of making the deposit within the prescribed time period, the award holder shall be at liberty to apply for variation or modification of this order.

Let this matter appear on 15 April, 2024 for further hearing. In the meantime, the parties are directed to exchange the particulars in respect of the interest component prior to the returnable date.”

It is submitted on behalf of the award-debtor that there were no grounds for recalling of the order dated 19th December, 2018 and that too after a period of five years. The application for recalling of the order dated 19 December 2018 was barred by limitation and was liable to be dismissed. In any event, the Court had no jurisdiction to revisit the issue of stay of the award.

There is also no power nor jurisdiction under the Arbitration and Conciliation Act, 1996, which empowers the Court to recall its order. It is further submitted on behalf of the award-debtor that there is no question of re- agitating the issues which had already been adjudicated by virtue of the order dated 19th December, 2018 and all such issues are barred by the principles of res-judicata. Neither the amendments provisions nor the decision in Pam Development Pvt. Ltd. Vs. State of West Bengal (2019) 8 SCC 112 are any grounds to recall the order dated 19 December 2018.

On behalf of the award-holder, it is submitted that the application is misconceived