Hon’ble Apex Court : The Court Decided Hearing U/S. 34 Arbitration And Conciliation Act : Objections Order Fresh Arbitration Proceedings
Hon’ble Apex Court : The Court Decided Hearing U/S. 34 Arbitration And Conciliation Act : Objections Order Fresh Arbitration Proceedings
The Supreme Court has provided exception to the principle that a court while deciding a petition under Section 34 of the Arbitration and Conciliation Act has no jurisdiction to remand the matter to the Arbitrator for a fresh decision.
The Bench comprising of Justice M.R. Shah and Justice B.V. Nagarathna observed that the above is applicable only when the said petition is decided on merits and in case where both the parties agreed to set aside the award, the Court has discretion to remit the matter back to Arbitrator fresh Arbitration Proceedings.
The petitioner herein has filed the present SLP assailing Bombay High Court order wherein I.A. for restoration of the C.A. has been dismissed.
Learned Senior Advocate appearing on behalf of the petitioner has vehemently submitted that as such the petitioner never consented for remand of the matter to the same learned Sole Arbitrator and placed reliance on Kinnari Mullick and Anr. vs. Ghanshyam Das Damani, M/S DYNA TECHNOLOGIES PVT LTD. vs. M/S CROMPTON GREAVES LTD, 2019, Pay Clearing Services Private Limited Versus ICICI Bank Limited to submit that that in exercise of powers under Section 34 of the Act the Appellate Court cannot set aside the award on the ground that no reasons have been assigned and the matter cannot be remanded to the same Arbitrator to give reasons.
Relying upon Section 5 of the Act it was submitted that there shall be no judicial intervention except where so provided in the Arbitration Act. It was further submitted that the Arbitration Act under Section 34 of the Act does not provide that the Appellate Court can set aside the award and remand the matter to the same sole Arbitrator to provide the reasons.
The Court stated that the intention of both the parties can be realized from the Learned Single Judge's order wherein he specifically observed that “the parties intend to request the learned sole Arbitrator to publish a fresh award as expeditiously as possible”.
"From the aforesaid wordings the intention of the parties can be culled out that the award be set aside by consent and the matter be remanded to the same learned Sole Arbitrator for a fresh reasoned award. Therefore, once it is held that the order dated 30.04.2019 was a consent order and the parties agreed to set aside the award and remand the matter to the Sole Arbitrator for a fresh reasoned award, the decisions relied upon by the learned counsel on behalf of the petitioner referred to hereinabove shall not be applicable and/or be of any assistance to the petitioner."
"The principle of law laid down by this Court in the aforesaid decisions would be applicable where the Appellate Court decides the application under Section 34 of the Act on merits. It is to be noted that even in a case where the award is set aside under Section 34 of the Act on whatever the grounds which may be available under Section 34 of the Act, in that case the parties can still agree for the fresh arbitration may be by the same arbitrator. In the present case both the parties agreed to set aside the award and to remit the matter to the learned Sole Arbitrator for fresh reasoned Award."
