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Judgment
Amitava Lala, J.—This is an appeal from an order dated 5th April, 2008, passed by the learned District Judge, Mathura dismissing the application of the appellant filed u/s 9 of the Arbitration and Conciliation Act, 1996 (hereinafter called as the ''Act''). It has been held by the court below that Section 9 of the Act does not contemplate any proceeding challenging the award of the arbitrator passed, if any, in the arbitral proceeding. An award can only be challenged u/s 34 of the Act.
Mr. K.M. Garg, learned Counsel appearing for the appellant, contended that as because the award of arbitration is outcome of a nullity, it can be challenged in any collateral proceeding. Hence, it can also be challenged in the application u/s 9 of the Act. On the other hand, Mr. M.K. Gupta, learned Counsel appearing in support of the respondent, contended that some amount of money by cheque/s has/have been received by the appellant on the basis of such award, therefore, he has acted upon the award.
Without going into such controversy let us confine ourselves on the issue at first. Section 9 of the Act contemplates a provision for interim measures when Section 11 of the Act contemplates appointment of arbitrator/s. But in case any award has been passed and an aggrieved wants to challenge the same, that can only be done by way of making application for setting aside the arbitral award u/s 34 of the Act. Mr. Garg has proceeded with misconception of law totally. Question of nullity will have to be detected. But if a person himself initiates a wrong proceeding in spite of having appropriate provision of law, he can not be allowed to raise such issue. A proceeding, being nullity, cannot determine the question of nullity. In between CPC and the Arbitration and Conciliation Act, 1996, the later one is considered to be a special law. Section 34 of such special law speaks that recourse to a Court against an arbitral award may be made only by an application for setting aside such award. The word ''only'' is determinative in nature. Hence, we are of the view that we can not admit the appeal. Thus, the appeal is dismissed, however, without imposing any cost.
However, it is open to the appellant either to make an application u/s 34 or Section 9 of the act but for the respective purpose.
Similarly the defence of the respondent that the appellant has acted upon the award is also open for consideration in case of necessity
Shishir Kumar, J.
I agree.