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2016 (10) TMI 1212 - HC - Indian LawsWhether issuance of a notice, under sub-Section (5) of Section 34 of the Arbitration and Conciliation Act, 1996 is mandatory or directory? Whether an order, entertaining an application, which is made contrary to the provisions of Section 34(5) of the 1996 Act, by omitting to serve advance notice on the opposite party by the application, would be amenable to Article 227 or 226 of the Constitution of India? Whether a District Judge, while exercising power under Section 34 of the 1996 Act functions as a Civil Court or a Court other than a Civil Court? Held that:- A party may be prevented for divergent reasons from filing its written statement in time. The reasoning, once put forwarded, and the court finds the same as exceptional, there is ground for accepting the written statement even when the same is found to have been filed beyond the time prescribed under the law. Here, the same analogy does not fit in or can be applied. The State has not cited any exceptional reasons. In fact, no reason has been cited, at all, for not having issued the notice prior to challenging the award under Section 34 of the 1996 Act. Issuance of a previous notice and filing of an affidavit cannot be claimed to be prevented under any situation. The requirement is simple and can always be followed. Whether the present appeal is maintainable and whether the original petition was under Article 227 or 226 of the Constitution of India? - Held that:- Since the filing of the proceeding under Section 34 of the 1996 Act before the learned District Judge is against the statute, the subsequent order, dated 18.07.2016, cannot cure the initial illegality - Patent appeal not maintainable. Appeal allowed.
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