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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

927 WRIT PETITION NO.6434 OF 2021

GENERAL MANAGER SOUTH CENTRAL RAILWAY THROUGH SENIOR

DIVISIONAL ENGINEER

VERSUS

JAGANNATH GOVINDRAO PHULARE

...

Standing Counsel for Petitioner (U.O.I.) : Mr.Deshpande Sanjeev B.

Advocate for Respondent : Mr.G.K.Thigale (Naik)

...

CORAM : SANDEEP K. SHINDE , J.

Date :- 15^th June, 2021.

P. C. :

1.

Heard the learned counsel for the parties.

2.

Aggrieved by the award, dated 28th December, 2018 passed

by the learned Sole Arbitrator, petitioner instituted the proceedings under

Section 34 of the Arbitration and Conciliation Act, 1996 ('Act' for short)

being Civil M.A. No. 173 of 2019, in the Court of the 7th Adhoc District

Judge, Aurangabad. An application under Section 36 (2) of the Act was

also moved, seeking stay to the execution of the impugned award.

Pending application, award was put to the execution, whereafter, the

Extra Joint District Judge, Aurangabad, issued attachment-cum-recovery

warrant on 17th March, 2021. The petitioner being aggrieved by the order

dated 17th March, 2021 has invoked the writ jurisdiction of this Court,

under Article 227 of the Constitution of India.

3.

The order dated 10th June, 2021 passed by this Court

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shows, petitioner was willing to deposit 7,00,00,000/- as a goodwill

gesture, against the award, for Rs. 22.98 Crores.

4.

The learned counsel for the petitioner would submit that

once the application under Section 36 (2) of the Act was moved,

propriety demands, the concerned Court would decide the application

expeditiously on merits and may or may not, stay the operation of the

award by recording the reasons in writing. It is therefore, submitted that

since the application has not been decided nearly for two years, the

District Court ought not to have ventured to issue of attachment order

without first deciding the application. On these grounds petitioner assails

impugned order dated 17.03.2021.

5.

Mr. Thigale, learned counsel for the respondent, would

submit that neither an application under Section 34 of the Act nor an

application seeking stay to the execution of the award were filed within

prescribed time. He would submit petitioners had not filed an application

for condonation of delay along with an application filed under Section 34

of the Act. It is therefore submitted that, the order passed by the

executing Court issuing attachment-cum-recovery of award cannot be

faulted with. Mr. Deshpande, learned counsel for the applicant would

dispute this fact and submit that proceedings under Section 34 of the Act

were instituted in time.

6.

Be that as it may, I have considered the submissions of the

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learned counsel for the parties.

7.

By keeping all the contentions including jurisdictional issues,

open as raised, by Mr. Thigale, the learned counsel for the respondent, in

my view, the ends of justice would meet, if the parties are directed to

cause their appearance before the learned District Court on 20^th July,

2021 at 11.00 a.m. However, well before that the petitioner shall deposit

Rs. 7,00,00,000/- with Nazar of the District Court in Civil Misc.

application No. 173 of 2019.

8.

Once parties cause their appearances on 20^th July, 2021 the

learned District Court shall schedule the hearing of the stay application

as per its convenience and ensure that application filed under Section 36

(2) of the Act, is decided on its own merits, preferably on or before 30^th

September, 2021.

9.

It is made clear that all the contentions of the parties are

expressly kept open, as this Court has not heard the parties on merit.

Learned counsel for the parties assure this Court that, parties shall not

seek unnecessary adjournments. It is accepted as undertaking to this

Court.

10.

In view of the order passed herein abov