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STATE v M/S DHAN SINGH SANKHALA - CRES Case No. 02798 of 2004  RD-RJ 349 (4 October 2004)
S.B. Civil Restoration Appl. No.2798/2004 DR(J)
S.B. Civil Misc. Appeal No.3483/2003 DR(J)
Date of Order :: 04-10-2004
HON'BLE MR. PRAKASH TATIA,J.
Mr. N. Mulchandani, for the appellant.
Heard learned counsel for the appellant.
The arbitration award dated 12.11.2002 was challenged by filing objection petition before the Court of
District Judge, Jaisalmer. Learned District Judge,
Jaisalmer passed the order on 11.3.2003 that that court has no jurisdiction and returned the objection petition, so that same may be filed in the High Court. The objection petition was taken back on behalf of the appellant from the court of District Judge, Jaisalmer on 13.3.2003 which is clear from the documents placed on record by the appellant.
Instead of submitting the objection petition before this
Court,the appellant submitted appeal under Section 39 of the Arbitration Act, 1940. The office raised the objection on 19.8.2003 but no reply was filed to the office objection. The case was listed in Court twice, and thereafter, when case was listed in Court on 8.1.2004, the objection was raised by the counsel for the respondent about the maintainability of the appeal filed under the Act of 1940. This Court granted time to the counsel for the appellant to meet with the objection raised by the respondent. No steps were taken and ultimately, the appeal was dismissed on 19.1.2004.
The petitioner-appellant has submitted application for restoration before this Court after delay of 55 days and with several other defects. The petitioner- appellant submitted some reasons for condonation of delay in filing the appeal. The appellant submitted one application under Section 5 of the Limitation Act alongwith this application which has been filed for restoration of the appeal.
As stated above, facts reveal that the objection petition was filed by the appellant before the learned
District Judge, Jaisalmer and that was returned for presentation before this Court. The said petition has not been submitted before this Court and the petitioner- appellant preferred this appeal. The petition which was returned to the appellant by the court of District Judge,
Jaisalmer on 13.3.2003, has not been presented before this
Court, and there is no application to meet with the objection filed by the petitioner and the appellant is still seeking condonation of delay in filing the appeal, when the appeal itself has not been shown to be maintainable as the award was passed under the provisions of the Act of 1996 and not under the Act of 1940, I do not find that in such circumstances, any purpose can be served by condoning the delay in filing the application for restoration of the appeal.
In view of the above, the restoration application is dismissed. [PRAKASH TATIA],J.
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