M/S Prabhu Construction Pvt. ... vs Union Of India Thr. General ...
2022 Latest Caselaw 9990 Bom

27.aa.9.21.jud                                                                    1/4

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR

                        ARBITRATION APPEAL NO.9 OF 2021

Appellant :                       M/s. Prabhu Construction Pvt. Ltd.
                                  Through its Director
                                  Mr. Prabhubhai Jadhaveji Rathod, Aged : 75 years,
                                  Office at 19, Dharampeth Extension,
                                  Shankar Nagar Square, Nagpur 440010.
                                  - Versus -
Respondents :           1)        Union of India, Through -
                             1a) General Manager,
                                  South Eastern Railway,
                                  Carden Reach, Kolkata - 700 043, West Bengal.
                             1b) Divisional Railway Manager,
                                  South Eastern Railway (Engineering),
                                  Nagpur, Maharashtra.
                             1c) Sr. Divisional Engineer,
                                  South Eastern Railway,
                                  Nagpur, Maharashtra.
                        2)        Mr. H.L.Suthar,
                                  Secy. to Pr. Chief Engineer,
                                  South Eastern Railway,
                                  Garden Reach, Calcutta.

                 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                 Mr. C.B. Dharmadhikari a/w Ms. M.J. Kulkarni,
                 Advocates for the Appellant.
                 Mr. Nitin Lambat, Advocate for the Respondents.
                 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                 CORAM        :       VINAY JOSHI, J.

                 DATE         :       29th SEPTEMBER, 2022

ORAL JUDGMENT :-
 27.aa.9.21.jud                                                                  2/4

             Admit. Heard finally by consent of both sides.


02]          A short issue is involved in this appeal regarding applicability of the

amended provisions of the Amendment Act of the year 2015 to the

proceedings under Section 34 of the Act.

03] It is the appellant's case that by virtue of appointment of Arbitrator,

award was passed on 5th July, 2002 and modified on 30 th July, 2002. The

appellant's partial claim was rejected, that is why the appellant has challenged

the award in terms of Section 34 of Arbitration and Conciliation Act, 1996

(hereinafter referred to as "Act" for short) in M.C.A. No.398/2006. It is the

appellant's contention that application under Section 34 of the Act was filed

on 11/11/2002, however, the learned Principal District Judge has taken into

account the amended provision of Section 34(2)(a) of the Act while deciding

the matter on merits. It is his submission that the amended provisions of the

year 2015 have substantially made material change. Though the amended

provisions were not applicable for deciding the application, which was filed on

11/11/2002, the learned District Judge has considered the same and,

therefore, the matter requires to be reheard.

04] In order to contend that the amended provisions of Section 34 of

the Act will apply to the applications, which have been filed on or after

27.aa.9.21.jud 3/4

23/10/2015, the appellant relied on the decision of the Supreme Court in the

case of Ssangyong Engineering and Construction Company Limited vs.

National Highways Authority of India (NHAI) - (2019) 15 SCC 131.

Particularly, emphasis is laid on paragraph 19 of the judgment, wherein the

Supreme Court has authoritatively declared that the amended provisions of

Section 34 of the Act would apply to the applications, which are filed after

23/10/2015 irrespective of the proceedings might have commenced prior to

the date.

05] The learned Principal District Judge in paragraph 21 has specifically

referred amended proviso to Section 34(2)(a) of the Act, which speaks that

"an award shall not be set aside merely on the ground of an erroneous

application of the law or by re-appreciation of evidence". Virtually, the

amended provision restricts the nature and scope of interference to be made

under Section 34 of the Act. Reference of amended provision of Section 34(2)

(a) of the Act gives impression that the District Judge after considering the

amended provision, which were in fact not applicable, has decided the matter

on merits.

06] Learned Counsel Mr. Lambat appearing for the respondents

conceded the legal position that the amended provisions of the year 2015,

27.aa.9.21.jud 4/4

particularly sub-section 2(a) of Section 34 of the Act was not applicable while

deciding the arbitration application, which was filed prior to the amendment.

He would submit that considering the above position, the matter can be

remanded, however, the petitioner shall not be permitted to re-agitate the

ground which has canvassed earlier in terms of amended Section 29A of the

Act. Obviously, it is the appellant's own contention that the amended

provisions would not apply meaning thereby he cannot re-agitate the ground

of amended Section 29A of the Act after remand. Needless to say that the

objection pertaining to Section 29A of the Act would not survive at all.

07] In view of the above, the appeal is allowed. The impugned

judgment and order dated 20/09/2009 passed in Civil M.A. No.398/2006 is

hereby quashed and set aside. The application is restored at its original stage.

The learned Principal District Judge, Nagpur shall decide the application

afresh on its own merits in view of the then prevailing legal position. Both the

parties undertake to appear before the learned Principal District Judge,

Nagpur on 10th October, 2022 without notice. The appeal stands disposed of

in the above terms.

(VINAY JOSHI, J.) *sandesh

Signed by:SANDESH DAULATRAO WAGHMARE Private Secretary to the Hon'ble Judge Signing Date:01.10.2022 16:53