TMI Blog2018 (5) TMI 1750X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the Amendment Act unless the parties otherwise agree. The terms and conditions of the Contract in question are governed under the General Conditions of Contract, 1998. The application filed by the appellants under Section 34 of the Act was not maintainable in the absence of compliance of the mandate of Section 34(5) of the Act - appeal dismissed. - Arb. A. 1/2018 - - - Dated:- 31-5-2018 - Manojit Bhuyan, J. For the Appellant : U. Chakraborty, Advocate For the Respondents : R. Hussain, Advocate JUDGMENT Manojit Bhuyan, J. 1. Heard Mrs. U. Chakraborty, learned counsel for the appellants as well as Mr. R. Hussain, learned counsel representing the sole respondent. 2. This arbitration appeal is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Sessions Judge, No. IV, FTC, Kamrup (M) was registered and numbered as Misc. (Arb) Case No. 2/17. Notice in the case was issued and the sole respondent, on making appearance, raised a preliminary objection to the effect that the application filed under Section 34 of the Act by the appellants was not maintainable as prior to filing of the application the appellants did not comply with the mandatory requirement as enjoined in Section 34(5) of the aforesaid Act. The preliminary objection was accepted by the court below and accordingly the application under Section 34 filed by the appellants was dismissed. The court below also observed that before filing an application under Section 34 of the Act, it is mandatory on the part of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that the submissions advanced on behalf of the appellants are inherently flawed, in as much as, the mandate under Section 34(5) of the Act is squarely applicable in the present case. Mr. Hussain have justified the same by making reference to Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 and to the meaning of the word only finding place in Section 34(5) of the Act and as interpreted by the Supreme Court. 6. It is seen that Section 34(5) was inserted by way of amendment under the Arbitration and Conciliation (Amendment) Act, 2015, made effective from 23.10.2015. Section 26 of the Amendment Act, which appears to be the crux of the matter, is extracted hereunder: 26. Act not to apply to pending arbitral proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 34(5) of the Act is not applicable in the present case. Notice is also had to the expression only used in Section 34(5), which has been interpreted by the Supreme Court in the case of Ramesh Rout v. Rabindra Nath Rout, (2012) 1 SCC 762 to mean that it excludes any other mode and assumes a mandatory character. 7. Having noticed the provisions under Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 and the interpretation given to the word only in Ramesh Rout (supra), I am of the considered view that the application filed by the appellants under Section 34 of the Act was not maintainable in the absence of compliance of the mandate of Section 34(5) of the Act. I find no infirmity in the order dated 29.11.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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