Arbitration and Conciliation Act, 1996
Section 34(2)(a)—Setting aside of arbitral award—In case of arbitration proceedings commenced and concluded prior to the amendment of section 34(2)(a) by the Act No. 33 of 2019, pre-amendment of Section 34(2)(a) shall be applicable.
[Para 6]
Section 34(2)(a)—Setting aside of arbitral award—High Court permitted respondents to adduce additional evidence—Appeal—In an exceptional case being made out and if it is brought to the court on the matters not containing the record of the arbitrator that certain things are relevant to the determination of the issues arising under section 34(2)(a) of the Act, then the party who has assailed the award on the grounds set out in section 34(2)(a) can be permitted to file affidavit in the form of evidence—However, the same shall be allowed unless absolutely necessary—A strong exceptional case is made out by the respondents to permit them to file affidavits/adduce additional evidence—However, at the same time, the appellant also can be permitted to cross-examine and/or produce contrary evidence—High Court has not committed any error in permitting respondents to file affidavits/additional evidence in the proceedings under section 34 of the Arbitration Act—Appeal dismissed.
Held : From the affidavit, which is sought to be placed in the proceedings under Section 34 of the Act, it is seen that the respondents want to place on record the communication from the appropriate authority by which the application for amalgamation of the plots is rejected. At this stage, it is required to be noted that the arbitral tribunal has passed the decree for specific performance of the contract/agreement, subject to the amalgamation of the plots. Therefore, it is the case on behalf of the respondents that in view of the refusal of the permission by the appropriate authority to amalgamate the plots, the case falls under section 34(2)(b), namely, that the dispute is not capable of settlement under the law for the time being in force and that the arbitral award is in conflict with the Public Policy of India, namely, against the relevant land laws. The event of refusal to amalgamate the plots is subsequent to the passing of the award and therefore naturally the same shall not be forming part of the record of the arbitral tribunal. Even otherwise, it is required to be noted that the award of the arbitral tribunal was an ex- parte award and no evidence was before the arbitral tribunal on behalf of the respondents. We are not opining on whether the arbitral tribunal was justified in proceeding with the further proceedings ex-parte or not. Suffice it to record that before the arbitral tribunal, such evidence was not there and nothing was on record on the amalgamation of the plots.
The affidavit thus discloses specific document and the evidence requires to be produced. In that view of the matter, a strong exceptional case is made out by the respondents to permit them to file affidavits/adduce additional evidence. However, at the same time, the appellant also can be permitted to cross-examine and/or produce contrary evidence.
In view of the above and for the reasons stated above, the High Court has not committed any error in permitting the respondents to file affidavits/additional evidence in the proceedings under Section 34 of the Arbitration Act.
[Paras 8 to 11]
Section 34(2)(b)—Setting aside of arbitral award—Ground—Defence that arbitral award is in conflict with the Public Policy of India itself can be a ground to set aside the award in view of section 34(2)(b) of the Arbitration and Conciliation Act.
[Para 10]
Decision : Appeal dismissed
Alpine Housing Development Corporation Ltd. v. Ashok S. Dhariwal : 2023 LRC Online