Common Order vs Ajmer Vidyut Vitran
2022 Latest Caselaw 5021 AP

            HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                     ICOMA.O.A.Nos.1 & 2 of 2019


COMMON ORDER:

       As both the applications relate to the same arbitral Award,

concerning the same parties, both these applications are being disposed

of by this common order.

       2.     Sri Sampat Rao Sudhakar, the claimant in ICOMA.O.A.No.1

of 2019 is referred to as the claimant and M/s. Emirates, the 1 st

respondent in ICOMA.O.A.No.1 of 2019 is referred to as the respondent,

and the Arbitrator is referred to as the arbitrator.

3. The claimant had been employed by the respondent as a

Steward in the Airlines of the respondent. The contract of service between

these two parties is contained in the document dated 07.05.2006, by

virtue of which, the employment of the claimant with the respondent

commenced from 18.05.2006. It ended with the letter of termination

dated 27.12.2009 being served on the claimant by the respondent.

4. The Claimant sought to raise a claim for compensation,

against the respondent, on the ground that he had suffered an injury

during the course of his employment with the respondent and had to be

compensated. The Claimant is said to have attempted, unsuccessfully, to

file this claim before the courts in India. He had also enquired whether his

claim could be filed before the international Court of Justice and was

answered in the negative. Thereafter, he contends that, he had invited

the Respondent, M/s Emirates NBD Bank, Dubai and it's branch in Mumbai

to participate in Arbitration. After all these attempts, he had appointed

the arbitrator, in the year 2017, and filed a claim for Rs. 95,08,28,973/-

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                                                 ICOMA OA.Nos.1 & 2 of 2019

along with interest or in the alternative a sum of Rs. 81,49,06,089 along

with interest against the respondent and the other two respondents in the

claim petition. The arbitrator, after setting all the respondents in the

claim petition, ex parte, had passed an award, on 20.08.2017, dismissing

the claims of the claimant against the other two respondents and awarded

a sum of Rs. 4,00,00,000/- against the respondent herein.

5. It is the case of the respondent that, it became aware of the

said award, only when the Hyderabad Airport office of the respondent had

received a show cause notice on 05.11.2018, issued by the erstwhile High

Court at Hyderabad for the State of Telangana and the State of Andhra

Pradesh in C.R.P.No.3897 of 2018. Upon coming to know of this Award,

the respondent had addressed communications to the said sole Arbitrator

who supplied a copy of the Award to the respondent. Thereafter, the

respondent had filed ICOMA.O.A.No.2 of 2019, on 27.12.2018, under

Section 34 of the Arbitration and Conciliation Act, 1996, (for short ‗the

Act') to declare the Award dated 20.08.2017 is a nullity, nonest under law

and without jurisdiction, and to set aside the same.

6. Ms. Ritu Singhmann appearing for Ms. T. Alekhya Reddy,

learned counsel for the respondent assails the award on the following

grounds:

a) There is no agreement of arbitration between the parties, much

less, a written agreement of arbitration, as required under Section 7 of the

Act.

b) The contract between the parties is contained in the letter of

the respondent dated 07.05.2006 and the said document does not contain

any provision for resolution of disputes between the parties by way of

arbitration.

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                                                ICOMA OA.Nos.1 & 2 of 2019

c) The respondent never received any notice of arbitration or

appointment of Arbitrator prior to 05.11.2018. The assertion of the

claimant that notices were served has to be negatived, even if notices had

been sent by registered post, as India and the United Arab Emirates had

entered into a bilateral treaty , dated 25.10.1999, which specifies that

service of summons and other judicial documents shall be through the

Ministry of Justice in the United Arab Emirates and not by direct service of

notices by mail or otherwise.

d) The Award, passed by the Arbitrator states, in paragraphs 6

and 7, that a notice of arbitration had been sent to the respondent and

the arbitration had been taken up as there is no response from the

respondents.

e) Section 11 of the Act requires the consent of the parties

before an Arbitral Tribunal can be constituted and in the event of either

party to the arbitral agreement refusing consent, the aggrieved party

would have to approach either the High Court or the Supreme Court, as

the case may be, for appointment of an Arbitrator. Silence on the part of

the respondent, even assuming that notices have been served on the

respondent, does not give the Arbitrator any authority or right to proceed

with the arbitration.

f) As there is no arbitration agreement and as the respondent

had never consented for the appointment of the Arbitrator, the entire

exercise is nonest in law and the Award is a void proceeding which can be

set aside, de hors the provisions of Section 34 of the Act. She relies upon

the judgments of the Hon'ble Supreme Court in Dharma 4 RRR,J ICOMA OA.Nos.1 & 2 of 2019

Prathishthanam v. Madhok Constructions (P) Ltd.,1; (paragraph

Nos.12 and 27); Hindustan Zinc Limited vs. Ajmer Vidyut Vitran

Nigam Limited2; a Division Bench judgment of the Bombay High Court

JSW Steel Ltd., vs. Kamlakar V. Salvi, & Ors., in W.P.No.12897 of

2016 dated 04.10.2021; Division Bench Judgments of the High Court of

Delhi in Smt. Savitri Goenka vs. Kanti Bhai Damani & Ors., in

FAO.(OS).No.183 of 2008 dated 03.02.2009; KRR Infra Projects Pvt.

Ltd. Vs. Union of India in Rev. Pet.No.267 of 2018 dated 29.10.2018;

and 1988 (3) AWC 2109 (paragraph 10); and a judgment of the High

Court of Rajasthan in M/s. Mehta Associates, Kishangarh vs. State

of Rajasthan & Ors., in Civil.Misc. Arbitration Appln.No.36 of 2013 dated

02.12.2014.

g) The Arbitrator, in paragraph-4 of the Award, had held that

the law of the land, where the arbitration proceedings are being

conducted would apply, and applied Indian law. This is blatantly incorrect

as Clause ―Other Conditions‖ in page 7 of the letter dated 07.05.2006,

specifically stated that ―the Employment Agreement shall be construed in

all aspects under the laws of Dubai, United Arab Emirates (U.A.E) and the

Courts of Dubai shall have jurisdiction in all matters relating thereto.‖

h) In the face of this Clause, the Arbitrator could have applied

only the law prevalent in Dubai, United Arab Emirates and not the Indian

law. She relies upon the judgment of the Hon'ble Supreme Court in

Indtel Technical Services Private Limited vs. W.S. Atkins Rail

Limited3 (paragraph 36).

  AIR 2005 SC 214

  (2019) 17 SCC 82

  (2008) 10 SCC 308
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                                                ICOMA OA.Nos.1 & 2 of 2019

7. Ms. Ritu Singhmann, on the basis of the aforesaid

contentions submits that the Award requires to be set aside.

8. Sri Vedula Venkata Ramana, learned Senior Counsel

appearing for Sri D. Pridhvi Teja, learned counsel for the claimant would

submit as follows:

a) The respondent had received notice of the award dated

20.08.2017 when copies of the award had been sent to the respondent by

both the claimant and the Arbitrator. In any event, the respondent itself

admits the date of knowledge as 05.11.2018. However, the application for

setting aside the Award, under Section 34 of the Act, had been filed only

on 26.07.2019, which is beyond the time granted under the provisions of

the Act and as such barred by limitation.

b) The contention of Ms. Ritu Singhmann that the Award can be

set aside de hors Section 34 of the Act is not in accordance with the

provisions of the Act itself. The grounds on which the Award is sought to

be set aside, viz., lack of an arbitration agreement and lack of consent for

appointment of Arbitrator are grounds which are contained in Section 34

itself, and as such the question of setting aside the Award without

recourse to Section 34 of the Act is not permissible. The language of

Section 34, which states that recourse to Section 34 is the ―only recourse

available against an Award‖, makes it amply clear that there can be no

application outside Section 34 of the Act to set aside the Award dated

20.08.2017.

c) Sri Vedula Venkata Ramana, learned Senior Counsel relies upon

the judgment of the Hon'ble Supreme Court in P. Radha Bai and Ors., 6 RRR,J ICOMA OA.Nos.1 & 2 of 2019

vs. P. Ashok Kumar and Anr.,4 (paragraph 32). The Hon'ble Supreme

Court went into the question of the applicability of section 17 of the

Limitation Act, vis a vis section 34 of the Act and held that Section 17 is

not applicable to applications filed under section 34 of the Act.

Consideration of the Court:

9. The Award, under challenge, is said to have been passed

under the provisions of the Arbitration and Conciliation Act, 1996. The

relevant provisions of the Act, for the purpose of this case, are Sections 7,

11 and 34, which are extracted below:

Section 7 Arbitration agreement.--(1) In this Part, ―arbitration agreement‖ means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in--

(a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or

(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract

(2019) 13 SCC 445 7 RRR,J ICOMA OA.Nos.1 & 2 of 2019

11. Appointment of arbitrators.--(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.

(4) If the appointment procedure in sub-section (3) applies and--

(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or

(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court;

(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court

(6) Where, under an appointment procedure agreed upon by the parties,--

(a) a party fails to act as required under that procedure; or

(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or

(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement.

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                                        ICOMA OA.Nos.1 & 2 of 2019

(6B) The designation of any person or institution by the Supreme Court or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.

(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court is final and no appeal including Letters Patent Appeal shall lie against such decision;

(8) The Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court, before appointing an arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of sub- section (1) of section 12, and have due regard to--

(a) any qualifications required for the arbitrator by the agreement of the parties; and

(b) the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator.

(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Supreme Court or the person or institution designated by that Court] may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.

(10)The Supreme Court or, as the case may be, the High Court, may make such scheme as the said Court may deem appropriate for dealing with matters entrusted by sub- section (4) or sub-section (5) or sub-section (6), to it.

(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, 7[different High Courts or their designates, the High Court or its designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.

(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in an international commercial arbitration, the reference to the ―Supreme Court or, as the case may be, the High Court‖ in those sub-sections shall be construed as a reference to the ―Supreme Court‖; and

(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and sub-section (10) arise in any other arbitration, the reference to ―the Supreme Court or, as the case may be, the High Court‖ in those sub-sections shall be construed as a reference to the ―High Court‖ within whose local limits the principal Civil Court referred to in clause 9 RRR,J ICOMA OA.Nos.1 & 2 of 2019

(e) of sub-section (1) of section 2 is situate, and where the High Court itself is the Court referred to in that clause, to that High Court.

(13) An application made under this section for appointment of an arbitrator or arbitrators shall be disposed of by the Supreme Court or the High Court or the person or institution designated by such Court, as the case maybe, as expeditiously as possible and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party.

(14) For the purpose of determination of the fees of the arbitral tribunal and the manner of its payment to the arbitral tribunal, the High Court may frame such rules as may be necessary, after taking into consideration the rates specified in the Fourth Schedule.

Explanation.--For the removal of doubts, it is hereby clarified that this sub-section shall not apply to international commercial arbitration and in arbitrations (other than international commercial arbitration) in case where parties have agreed for determination of fees as per the rules of an arbitral institution.

Section 34 Application for setting aside arbitral award.--(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if--

(a) the party making the application 1[establishes on the basis of the record of the arbitral tribunal that--

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the 10 RRR,J ICOMA OA.Nos.1 & 2 of 2019

parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that--

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

Explanation 1.--For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,--

(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.--For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take 11 RRR,J ICOMA OA.Nos.1 & 2 of 2019

such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.

10. Section 7 of the Act requires every agreement of arbitration

to be in writing. This would mean that a written document containing the

arbitration agreement is required before any arbitration proceedings can

be initiated under the Act. In the present case, the claimant has not been

able to show any such written agreement to this Court. In the

circumstances, it must be held that there was no arbitration agreement,

as required under Section 7 of the Act.

11. The procedure for appointment of an Arbitrator is contained

in Section 11 set out above. The procedure that would have to be

followed, in the present case would have been that the claimant has to

invoke arbitration and seek the consent of the respondent for

appointment of an Arbitrator. Thereafter, the Arbitrator, so appointed,

would enter reference. The consent required from the respondent is

positive consent and not mere silence. In the event of the respondent

either refusing to appoint an Arbitrator or remaining silent, the only

recourse available to the claimant is to approach the relevant authority

under Section 11 of the Act, for appointment of an Arbitrator. It is only an

Arbitrator appointed in this manner, who would be competent and

authorised to enter into reference and pass an award.

12. In the present case, the Award of the Arbitrator, more

specifically at paragraphs 6, 7 and 12, specifically state that the 12 RRR,J ICOMA OA.Nos.1 & 2 of 2019

respondent had not given any express or positive consent for the

appointment of the Arbitrator and the Arbitrator arrogated the right to

enter into a reference and decide the issue on the basis of the silence of

the respondent.

13. It is clear from the above that the Award is in direct violation

of Sections 7 and 11 of the Act and would have to be treated as a nullity

and set aside.

14. The contention of the claimant is that such a declaration

would have to be obtained by the respondent only through an application

under Section 34 of the Act filed within the period stipulated under

Section 34 of the Act itself. The claimant contends that the period

provided under Section 34 of the Act is three months from the date of

knowledge of the Award, which can be extended by a further period of 30

days. The respondent, on the other hand, contends that the award can be

set aside De Hors Section 34 of the Act and as such the issue of limitation

does not arise.

15. In the present case, according to the claimant, the

respondent's date of knowledge of the Award is 20.08.2017 and the

application filed on 26.07.2019, is hopelessly barred by limitation and as

such the present application has to be dismissed.

16. The question, whether the Award can be set aside, De Hors

Section 34 of the Act, on the ground that the award is a nullity, would

have to be answered only if it is found that the application, under Section

34, is beyond the time prescribed therein.

17. A perusal of the petition, filed by the respondent, shows that

the said petition had actually been filed on 27.12.2018 and not 13 RRR,J ICOMA OA.Nos.1 & 2 of 2019

26.07.2019 as contended by the claimant. It appears that the application

was filed on 27.12.2018 before the High Court of Judicature at Hyderabad

for the State of Telangana and the State of Andhra Pradesh. The High

Court had been bifurcated with effect from 01.01.2019 and the bundle is

shown to be received on 26.07.2019 by the High Court of Andhra

Pradesh. However, the fact remains that the application had been filed by

the respondent before the competent Court as on 27.12.2018. In the

circumstances, it must be held that the application has been filed on

27.12.2018.

18. The said application, would be within time if the date of

knowledge of the respondent is accepted as 05.11.2018. However, it

would be beyond limitation if the date of knowledge of the respondent is

20.08.2017.

19. The claimant has filed certain postal receipts along with

track reports to contend that the Award had been sent to the address of

the respondent on 20.08.2017. Before dealing with these documents, the

contention of the Respondent that service by post cannot be accepted,

would have to be dealt with. Article III of the bilateral treaty relied upon

by the Respondent reads as follows:

ARTICLE - III

1. Summons and other judicial documents in the Contracting Parties shall be served: i. In the case of India, through the courts in whose jurisdiction the concerned persons reside; ii. In the case of the United Arab Emirates, through the Ministry of Justice.

2. The service of summons and other judicial documents shall be \effected in accordance with the procedure provided for in the laws of the Requested State, 14 RRR,J ICOMA OA.Nos.1 & 2 of 2019

or by a particular method desired by the Requesting State, unless such a method is incompatible with the law of the Requested State.

3. The summons and other judicial documents served in pursuance of this Agreement shall be deemed to have been served in the territory of the Requesting State.

4. The provisions of paragraph 1 of this Article shall not preclude the right of the Contracting Parties to effect such service, through its diplomatic or consular representatives, of summons and other judicial documents on its nationals residing in the territory of the other Contracting Party without application of any compulsion. Service in such cases shall entail no responsibility for the State of accreditation.

5. Subject to the provisions of paragraph 2 of this Article summons and other judicial documents may be served directly through postal channels or by delivery to an addressee who accepts it voluntarily without application of any compulsion.

6. Any claim about the addressee being a national of the State in whose jurisdiction the service is to be effected shall be determined in accordance with the law of the State.

20. Article III (5) provides that summons and other judicial

documents may be served directly through postal channels or by delivery

to an addressee who accepts it voluntarily without application of any

compulsion. In the present service of notices by way of post cannot be

treated as an irrelevant method of service. Accordingly, the question of

whether service of a copy of the award was done or not would have to

considered on the basis of the material before this court.

21. The track report filed as Annexure-1 along with I.A.No.3 of

2022 does not show the name of the respondent. The details of the

addressee shown in the track report are:-

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                                                     ICOMA OA.Nos.1 & 2 of 2019




         Name                 : Chairman and CEO
         Address              : EGHQ, AL GARH
         City                 : Dubai - 686.

22. The address shown in the postal receipts placed in

Annexure-1 shows that certain covers were sent from the post office near

Srikakulam District Court to Emirates MBD Bank, Andheri East Mumbai;

Emirates MBD Bank, Dubai; and Emirates International Airline, Dubai by

the claimant himself, on 20.08.2017, between 10.13 am and 10.16 am.

The address to which the cover was to be delivered is not available in the

receipt, except Pin No.‖686‖. It is the contention of the claimant that the

address of the respondent is a post box bearing No.686 in Dubai. The

contention of the claimant is that the Pin No.686 is reference to post box

No.686 and as such the receipt demonstrates that the award had been

served on the respondent. Another fact which needs to be taken into

account is that the weight of the cover sent under these receipts is 14

grams.

23. As far as the Arbitrator is concerned, he said to have sent

two covers under two receipts to Emirates International Airline, Dubai and

Emirates MBD Bank, Dubai at 10.15 am and 10.16 am from the post office

of Srikakulam District Court. The cover addressed to Emirates

International Airline has no address except Pin No.686. The weight of

these covers is said to be 55 grams each.

24. From the above, it is obvious that the covers sent by the

claimant did not contain the Award passed by the Arbitrator as any cover

containing the Award of the Arbitrator would weigh more than 14 grams.

Similarly, the covers sent by the Arbitrator also do not inspire confidence

as they weigh only 55 grams, and a cover containing the Award would 16 RRR,J ICOMA OA.Nos.1 & 2 of 2019

weigh more than that. Apart from this, it can also be seen that the covers

that are said to have been posted by the Arbitrator and the covers posted

by the claimant were all sent together from the same post office, at the

same time. This would mean that either both the claimant and the

Arbitrator went together to the post office and posted the covers or the

claimant had posted the covers which contain the name of the Arbitrator.

In either event, these receipts and track consignment reports do not

inspire any confidence in this Court to hold that the notice of the Award

had been sent to the respondent on 20.08.2017.

25. It is the case of the respondent that it had obtained a copy

of the Award from the Arbitrator after receiving the notice in

C.R.P.No.3897 of 2018 on 05.11.2018. This Court does not find any

reason to disbelieve the claim of the respondent.

26. In the circumstances, it must be held that the date of

knowledge of the Award, as far as the respondent is concerned, is

05.11.2018 and consequently the application is within the period of

limitation prescribed under section 34 of the Act. The question of whether

an award can be set aside, De Hors, section 34 of the Act is left open.

Accordingly ICOMA.O.A.No.2 of 2019 is allowed.

27. ICOMA.O.A.No.1 of 2019 is an application filed under Section

34 of the Act for setting aside the order of the District Judge, Srikakulam,

dated 29.11.2018. It is stated that, after the award had been passed by

the Arbitrator on 20.08.2017, an application, I.A. No. 1/2017 in ARC

01/2017, under section 33(1) (a) and 33 (4) of the Act was filed by the

Claimant for further enhancement of compensation and the same was

dismissed by the arbitrator on 16.01.2018. Aggrieved by the order of

rejection, the claimant had filed A.O.P. No. 201 of 2018 , under section 34 17 RRR,J ICOMA OA.Nos.1 & 2 of 2019

of the Act, against the order dated 16.01.2018, before the District Court,

Srikakulam. This application was returned by the District Judge, by order

dated 29. 11.2018, on the ground that the District Judge, did not have

territorial jurisdiction.

28. The order dated 29.11.2018 is challenged, by way of the

present application/appeal, under section 34 of the Act. It is apparent

from a reading of Section 34 that the said provision provides for recourse

against Arbitral Awards. It does not provide recourse against orders

passed by a court in a proceeding under section 34 of the Act.

Accordingly, this application is dismissed.

29. To sum up, ICOMA.O.A.No.2 of 2019 is allowed and the

award of the arbitrator dated 20.08.2017 is set aside and ICOMA.O.A.No.1

of 2019 is dismissed.

_________________________ R. RAGHUNANDAN RAO, J.

5th August, 2022 Js.

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                                     ICOMA OA.Nos.1 & 2 of 2019




      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




             ICOMA OA.Nos.1 & 2 of 2019




                  5th August, 2022
Js.