Calcutta High Court
Vodafone Essar East Limited vs Shree Balasaria Construction ... on 3 February, 2023
OD-1
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
IA NO. GA/3/2022
In
AP/1550/2014
VODAFONE ESSAR EAST LIMITED
VS.
SHREE BALASARIA CONSTRUCTION PVT. LTD.
BEFORE :
THE HON'BLE JUSTICE I.P. MUKERJI
Date : 3rd February, 2023
Appearance :
Mr. Dhruba Ghosh, Sr., Adv.
Mr. Kumar Gupta, Adv.
Ms. Nibedita Pal, Adv.
Mr. Altahamas Ali, Adv.
Mr. Soumen Bhattacharyya, Adv.
Ms. Sonam Ray, Adv.
...for applicant
Mr. Subhasis Sengupta,, Adv.
Mr. S. Dutta, Adv.
Mr. A. Ghosh, Adv.
...for respondent
The Court : - This application is taken out by the award holder. They feel that my
order dated 7th February 2017 is coming in the way of their right to enforce the subject
arbitral award.
The award is in favour of Mr. Ghosh's client Shree Balasaria Construction Pvt. Ltd. .
Vodafone Essar East Limited challenged this award by filing a Section 34 application. After
filing thereof, an application under Section 36 of the Arbitration & Conciliation Act, 1996
was made by the award debtor on its appreciation of the provisions of the said Act then in
force.
At the time of moving the application learned counsel for the award holder on
consideration of the law as interpreted at that point of time submitted that since the
arbitral proceedings had commenced before coming into force of the amendments to the
said Act, the Section 36 application would not be necessary. Filing of the Section 34
application would result in automatic stay of the award.
For reasons good or bad the Court accepted that submission and disposed of the
application of the award debtor under Section 36 of the said Act.
Now, it appears from the submissions made by Mr. Dhruba Ghosh, learned senior
advocate for the award holder that interpretation of the law by the Supreme Court is
different from what this Court had appreciated to be the law disposing of the Section 36
application.
If the interpretation of the law by the Supreme Court as pointed out by Mr. Ghosh is
correct then filing of the award did not operate as an automatic stay of the subject award
and the award holder was free to execute it subject to any order under Section 36 that the
award debtor might obtain.
Mr. Sengupta, for the award debtor submits that the subsequent amendment or any
judgment did not give any retrospectivity to the operation of Section 36.
This Court has not gone into this question of interpretation as it is beyond my
jurisdiction.
I only clarify my order dated 7th February, 2017 by saying that any direction or
observation made therein shall have no effect if there has been any change of the law at a
subsequent point of time either by enactment or by interpretation by the Supreme Court or
any other Court of law, affecting the execution of the subject award during pendency of the
application to set aside the same.
This application for clarification is accordingly disposed of with liberty to both sides
to take such steps as available in law. Prayers (b) and (c) are not pressed and are kept open
in an appropriate proceedings.
(I.P. MUKERJI, J.)
Pkd/GH.
