Judgment:
IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side Present : The Hon’ble Justice Sengupta And The Hon’ble Justice Asim Kumar Mondal 16.05.2012 APOT 26 of 2012 GA 133.of 2012 AP 17.of 2002 Coal India LTD.versus Canadian Commercial Corporation Mr.A.K.Mitra, learned Advocate General with Mr.Anirban Roy, Advocate for the appellant Mr.Tilak Bose, Sr.Advocate for the respondent.
The Court :- There will be an order in terms of prayer (a) of the Notice of Motion.
By consent of the parties the matter is treated as on day’s list as “Application Adjourned”.
Having regard to the nature of the matter we think that hearing of the appeal should be expedited.
Mr.Bose appearing for the respondent has also helped us to take a decision for expeditious hearing of the appeal.
He waives service of notice of appeal.
Therefore informal paper books shall be filed within two weeks after the summer vacation without fail enclosing all the papers used before the learned Trial Judge.
An index shall be prepared and included in the paper book to be filed.
However, settlement thereof is dispensed with.
not we shall consider the grant of interim relief.
Mr.Bose has seriously opposed the prayer for grant of interim relief with the contention that the learned Trial Judge has held that Section 34 has no manner of application.
Hence the award is final and executable.
If any interim order is passed then his client will not be in a position to execute the same.
The learned Advocate General submits that his client has advised to make an application under Section 34 along with other relevant section of Arbitration and Conciliation Act.
The learned Trial Judge however has rejected his contention that Section 34 has no manner of application.
Hence it is a debatable issue.
He also submits that if for any reason Section 34 is held to be applicable then award cannot be executable since appeal is continuation of the original proceeding and going by the language of Section 37 of the Arbitration and Conciliation Act or for any other provision of Section of the said Act the award cannot be executable.
We have heard the respective contentions of the parties.
We are of the prima facie view that as rightly contended by the learned Advocate General that applicability of Section 34 in an award of this nature for recovery of the money in the arbitration agreement is seriously debatable and in view of the above we think that some interim measure is required to be taken so much so that the appeal may not be rendered infructuous as claimant before us is the foreigner.
In the event the appeal succeeds before us it would be very difficult to recover the aforesaid amount.
On the other hand the appellant before us is an Indian Government Company and will not run away.
They have enough security from which the amount can be recovered.
Considering the aforesaid aspect of the matter we, therefore, direct the respondent not to execute the award before any forum without prior leave of this Court.
Matter will come up for hearing three weeks after the summer vacation.
In the event of non-filing of paper book the appeal will stand dismissed.
The allegations contained in the petition are not admitted by the respondent since no affidavit in opposition is sought to be filed for expeditious hearing of the appeal.
Affidavit of service is taken on record.
The application is disposed of.
All parties shall act on a xerox signed copy of this order on usual undertakings.
(Sengupta, J.) (Asim Kumar Mondal, J.) ANC