Smt. Sabita Roy & Ors vs Indranil Ballav & Ors
2021 Latest Caselaw 6213 Cal

    29
  sandip
  Ct. 18
08.12.2021

C.O. No. 2323 of 2019 (Via Video Conference)

Smt. Sabita Roy & Ors.

Vs.

Indranil Ballav & Ors.

Mr. Pradip Kumar Dutta, Mr. C. K. Dutta, Ms. Krishna Mullick ... For the petitioners.

Mr. Indranil Ballav.... ..Opposite party no.1 in person.

The revisional application under Article 227 of the

Constitution of India is directed against the Order No. 80

dated May 27, 2019 passed by the 3 rd Court of learned

Additional District Judge at Alipore, District - 24 Parganas

(South) in Title Suit No. 03 of 2014.

The opposite party no. 1 has filed an application under

Section 34 (2) of the Arbitration and Conciliation Act, 1996

for setting aside of the award dated July 31, 1997.

The said application has been registered before the

learned Trial Judge being Title Suit No. 11 of 2007.

The opposite party no. 1 by his said application has

challenged the said award, inter alia, on the grounds that no

notice of arbitration proceeding was served upon him.

The learned Trial Judge by the order impugned has

decided to address the said issue upon taking evidence at

the time of trial of the said proceeding.

Mr. Pradip Kumar Dutta, learned senior counsel

appearing on behalf of the petitioners, relying on the

decision of the Hon'ble Supreme Court in the case of Emkay

Global Financial Services Limited vs. Girdhar Sondhi,

reported in (2018) 9 Supreme Court Case 49 submits that in

view of the summary nature of a proceeding under Section

34 of the said Act of 1996, the procedure which the learned

Trial Judge is contemplating to adopt in disposing the said

application is wholly unwarranted.

The opposite party no. 1 appearing in person disputes

the existence of any arbitral agreement between him and the

petitioners.

Having heard Mr. Dutta and the opposite party no. 1 in

person and on going through the materials-on-record, it

appears that the procedure proposed to be adopted by the

learned Trial Judge in deciding the said application under

Section 34(2) of the said Act of 1996 runs counter to the object

sought to be achieved by the said provision of the said Act.

It would suffice to quote Paragraph 21 of the

aforementioned decision of the Hon'ble Supreme Court

relied on by Mr. Dutta to indicate the jurisdictional error

committed by the learned Trial Judge in passing the order

impugned:-

"21. It will thus be seen that speedy resolution of

arbitral disputes has been the reason for enacting the

1996 Act, and continues to be the reason for adding

amendments to the said Act to strengthen the

aforesaid object. Quite obviously, if issues are to be

framed and oral evidence taken in a summary

proceeding under Section 34, this object will be

defeated. It is also on the cards that if Bill No. 100 of

2018 is passed, then evidence at the stage of a Section

34 application will be dispensed with altogether.

Given the current state of the law, we are of the view

that the two early Delhi High Court judgments, cited

by us hereinabove, correctly reflect the position in law

as to furnishing proof under Section 34(2)(a). So does

the Calcutta High Court judgment. We may hasten to

add that if the procedure followed by the Punjab and

Haryana High Court judgment is to be adhered to, the

time-limit of one year would only be observed in most

cases in the breach. We therefore overrule the said

decision. We are constrained to observe that Fiza

Developers was a step in the right direction as its

ultimate ratio is that issues need not be struck at the

stage of hearing a Section 34 application, which is a

summary procedure. However, this judgment must

now be read in the light of the amendment made in

Sections 34(5) and 34(6). So read, we clarify the legal

position by stating that an application for setting

aside an arbitral award will not ordinarily require

anything beyond the record that was before the

arbitrator. However, if there are matters not contained

in such record, and are relevant to the determination

of issues arising under Section 34(2)(a), they may be

brought to the notice of the Court by way of affidavits

filed by both parties. Cross-examination of persons

swearing to the affidavits should not be allowed unless

absolutely necessary, as the truth will emerge on a

reading of the affidavits filed by both parties. We,

therefore, set aside the judgment of the Delhi High

Court and reinstate that of the learned Additional

District Judge dated 22-9-2016. The appeal is

accordingly allowed with no order as to costs."

The order impugned, for the aforesaid reason, is not

sustainable and is accordingly set aside.

C.O. 2323 of 2019 is thus allowed without any order as to

costs.

The learned Trial Judge is requested to dispose of the

objection expeditiously in accordance with law without

granting any unnecessary adjournment to either of the

parties.

Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties subject to compliance with all

requisite formalities.

(Biswajit Basu, J.)