Surinder & Co. vs Delhi Development Authority
2001 Latest Caselaw 1936 Del

JUDGMENT

V.S. Aggarwal, J.

1. In pursuance of the award having been filed notices had been issued and objections have been filed by M/s Surinder & Co against the award. Various grounds had been taken assailing thee award in the objection filed under Section 30 and 33 of the Arbitration Act, 1940. Notice was issued and the Delhi Development Authority in the reply filed to the objections has contested the same. On 10th February, 2000 this court had framed the following issued:

"1. Whether the award is liable to be set aside on the ground alleged by the defendants.

2. Relief."

2. During the course of submissions learned counsel for the respondent took up the preliminary objection that objections under Section 30 and 33 of the Arbitration Act, 1940 were not maintainable. It was urged that the award has been pronounced after the repeal of the Arbitration Act, 1940 and therefore in accordance with the agreement between the parties the objector could only apply in terms of Section 34 of the Arbitration and Conciliation Act, 1996. In the reply thereto the learned counsel for the objector contended firstly that such and objection had not been taken in the reply and in any case according to him since the proceedings had commence before the coming into force of the Arbitration and Conciliation Act, therefore, the objections were maintainable under Section 30 read with Section 33 of the Arbitration Act, 1940.

3. So far as the first objection raised on behalf of the objector is concerned opportunity was given to the learned counsel for the objector to address with respect to the argument raised by the learned counsel for the DDA. On that count therefore the learned counsel for the objector can have little objection. In any event since this matter goes to the root of the controversy and it has therefore to be seen whether the objections are maintainable or not and the question being purely legal it is unnecessary therefore to allow the objections in this regard to prevail. Legal questions can always be agitated irrespective of the fact whether it is one of the pleas raised in the pleadings or not. All these controversies has to be examined on the touchstone of prejudice, if any, that is caused. If no prejudice is caused to the objector who has been given opportunity to address the argument in this regard the contention must fail.

4. Reverting back to the main controversy it would be appropriate to refer to the clause of the agreement between the parties. Under Clause 25 it had been decided that in case of disputes referred to for arbitration. That part is not relevant for purposes of the present controversy. Sub paragraph 2 of Clause 25 rads:-

"Subject as aforesaid the provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to the arbitration proceeding under this Clause. It is a term of the contract that the party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under this clause together with the amount or amounts claimed in respect of the each such dispute".

5. In other words, the parties had agreed that the matter has to be governed by the Arbitration Act, 1940 or any re-enactment thereto. The position therefore which is admitted between the parties is that if there is any re-enactment the matter has to be governed in accordance with the same. It becomes unnecessary for this court to ponder further in this regard because of the decision of the Supreme Court in the case of Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. . There were three different matters before the Supreme Court. In the case of Rani Construction Pvt. Ltd, the contract was for construction of certain works of Himachal Pradesh Electricity Board, thereto the arbitration clause existed and it was further agree that in case there is any re-enactment then the matter would be governed by the same. Disputes had arisen on 4.12.1993. The arbitration had given the award after coming into force of the Arbitration and Conciliation Act, on 23.2.1996. One of the questions for consideration was as to whether objections would be governed by the Arbitration Act, 1940 or not. It was held that in the case of .. Construction Company the matter would be governed by the Arbitration and Conciliation Act, 1996 keeping in view the agreement the parties. Similar is the agreement herein. Therefore in the face of the authoritative pronouncement of the Supreme Court in the case of Thyson (supra) it must be held that objections under Section 30/33 of the Arbitration Act, 1940 were not maintainable.

6. One need not any opinion on the other pleas which may be embarrassing for either party in case any matter comes up under Arbitration and Conciliation Act, 1996. Issue is decided accordingly.

7. Relief: For these reason given above objection must fail and are dismissed. But it is added by way of abundant caution that nothing said herein should be taken as expression of opinion on the merits of the objections.