Government Of India, Bharat ... vs Acome And Ors.
2007 Latest Caselaw 302 Del

JUDGMENT

Vipin Sanghi, J.

1. The petitioner has filed the present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (The Act) to set aside the majority award dated 1.2.2002 passed by an Arbitral Tribunal consisting of three members.

2. In relation to a contract for supply of PIJF cables for Department of Telecommunications (DOT) and Mahanagar Telephone Nigam Ltd. (MTNL), the parties had entered into an agreement by issuance of two purchase orders by the petitioner both dated 1.6.1988. Dispute arose between the parties since according to the petitioner, some of the supplies were defective while the respondent contended that supplies were good and were in fact utilised by the respondent.

3. The matter was taken to arbitration consisting of three technical experts, namely, Mr. B.R.Nair (the Chairman of the Tribunal), Mr. T. Narayanamoorthy (the arbitrator nominated by the respondent) and Mr. Ranbir Khanna (the arbitrator nominated by the petitioner). Two of the arbitrators, namely, Mr. B.R.Nair and T. Narayanamoorthy made and published their majority award on 1.2.2002. This award was not signed by the third arbitrator, namely, Sh. Ranbir Khanna. However, the reasons for not signing the award are contained in the award itself. In paragraph 6 of the award the majority arbitrators recorded that a draft award was prepared and circulated by the Secretariat and was discussed by the three Arbitrators on 12.11.2001. While the Presiding Arbitrator Mr. B.R.Nair and Mr. T.Narayanamoorthy were more or less in agreement, the third arbitrator, namely, Mr. Ranbir Khanna disagreed with them and expressed his desire to make a separate award.

4. The minutes of the meeting held on 12.11.2001 were annexed to the award as Annexure 'E'. The majority arbitrators further record that the promised separate award has not been received by the Secretariat even after two months and, therefore, it was decided to publish the majority award. Again, in paragraph 16 of the majority award, it was recorded that Mr. Ranbir Khanna, Arbitrator had opined as of 12.11.2001 that no agreement could be reached on the award, therefore, he would make his award in due course of time. As of the making of the majority award, his award was still not available.

5. Mr. Ranbir Khanna the arbitrator gave his minority decision on 18.9.2002. Thereafter, the petitioner preferred the present petition on 16.12.2002 to challenge the majority award dated 01-02-2002.

6. A preliminary objection has been raised by the respondent that the objections to the award are barred by limitation and ought to be dismissed as such. The contention of the respondent is that since the majority award was made on 1.2.2002 and communicated to the parties on the same date, limitation for filing objections to the majority award started running against the petitioner in the beginning of February, 2002. Under Section 34(3) of the Act, for purposes of filing objections to the award, limitation is three months starting from the date on which the party making the application for setting aside the award received the arbitral award. Only upon sufficient cause being shown to the satisfaction of the Court, this period could be extended by atmost another 30 days but not thereafter. Respondent submits that since the petitioner was served with the majority award on 1.2.2002, in any event, the challenge thereto ought to have been raised by the petitioner before 30.6.2002, and not thereafter.

7. On the other hand, the contention of Learned Counsel for the petitioner is that unless all the arbitrators give their respective awards, it cannot be said that there is an arbitral award of the Tribunal. The award of the majority of arbitrators cannot be said to be valid and enforceable. Consequently, only when the last of the awards/decisions is made and communicated, can it be said that the arbitral award of the Tribunal has come into being which is valid and enforceable. It is only then that a right to challenge/object to the award accrues to the aggrieved party. He submits that limitation did not begin to run for filing objections to the majority award till the decision of the dissenting arbitrator Mr. Ranbir Khanna dated 18.9.2002 was received by the petitioner, which happened on 24.9.2002. If limitation is computed from that date, the objections as filed are well within time.

8. In view of the aforesaid, the first aspect that arises for consideration is, as to when can the award of a multi-member arbitral Tribunal be said to come into being and to be valid and enforceable? Is it necessary that all the members of the Tribunal must give their arbitral award/decision before the award of the Tribunal becomes valid and enforceable? The second aspect is, as to what is the starting point of limitation for purposes of filing objections to the award. Whether it is from the date of communication of the majority award, or it is from the date of communication of the last decision that may be rendered by a member of a multi-member Arbitral Tribunal?

9. Counsel for the respondent submits that once the majority award is made and communicated to the parties, the same is legally valid and enforceable and the limitation for filing objections under Section 34 of the Act begins to run from the date of communication thereof, irrespective of when the minority decision is communicated to the parties. He refers to Section 31 of the Act which states that "An arbitral award shall be made in writing and shall be signed by the members of the Tribunal", to contend that the Act contemplates a single award and there is no plurality of awards. Sub-section (2) of Section 31 states that for purposes of Sub-section (1), in arbitration proceedings with more than one arbitrator, the signatures of the majority of all the members of the Arbitral Tribunal shall be sufficient, so long as the reason for any omission of the signature of the minority of arbitrators is contained in the majority award itself. He submits that in the majority award dated 1.2.2002 the reasons for omission of the signatures of Mr. Ranbir Khanna, Arbitrator are clearly stated. He also relies to pages 234/273 of the record of the Tribunal in Volume 'A' which contains a communication signed and sent by Sh. T.Narayanamoorthy dated 19.12.2001 to Mr. Ranbir Khanna, with a copy to Mr. B.R.Nair. In this communication Mr. T.Narayanamoorthy referred to the meeting of 12.11.2001 when discussions with regard to publication of the award were held in the office of Mr. Ranbir Khanna and Mr. Khanna opined that no agreement could be reached with the majority arbitrators and he would make his own award. The communication also recorded that it was decided to await the award of Mr. Ranbir Khanna for a month. That period was over and the promised award had not been received. It was also communicated that the Secretariat would await the award of Mr. Ranbir Khanna until 31.12.2001 so that the award could be published by the Tribunal by 31.1.2002. It is contended that since the majority award is signed by two of three members of the Tribunal, the document is an arbitral award.

10. Counsel for the respondent also relied upon Russel on Arbitration at page 271 of the 21st Edition (1997). In para 6-059 Russel states as follows:

If however there is no chairman then decisions, orders and awards must be made by all or a majority of the tribunal. Any member of the tribunal who does not assent to an award need not sign it and may set out his own views of the case in a "dissenting opinion". This is for the parties' information only and does not form part of the award, but it may be useful in terms of adding weight to the arguments of a party wishing to appeal against the award.

11. I may only note that the author in his aforesaid commentary makes reference to the specific provisions of the Arbitration Act, 1996 as in force in England. It is the contention of the respondent that though the Act does not contain specific provisions similar to those in the English Arbitration Act, the two acts are similar and the same principles of law would apply in the Indian context as well.

12. Counsel for the respondent also refers to 176th Report of the Law Commission of India on the Arbitration and Conciliation Amendment Bill, 2001. In paragraph 2.20.1 the Law Commissioner notes that under Section 29 of the Act in Arbitral proceedings with more than one arbitrator, any decision of the Arbitral Tribunal shall be made by majority of all its members. The decision of the minority arbitrator is not to be treated as a part of the award. While dealing with the suggestion contained in a consultation paper that the minority view may be appended to the award passed by the majority to enable the parties or a Court of law to know the reasons for the same, the Commission rejected the same, by concluding that there is no need therefore. The reasoning of the Law Commission was as follows:

2.14 Minority dissenting view of arbitrators Under Section 31(2) of the 1996 Act, it is stated that the signatures of the majority of the members shall be sufficient "so long as the reason for any omitted signature is stated". Section 29(1) states that unless otherwise agreed, any decision of the arbitral tribunal with more than one member, shall be made by a majority of all its members.

This raises the question whether an arbitrator who is in a minority could avoid signing the award. It appears appropriate that Section 31(2) may be amended providing that the dissenting member shall be entitled to submit his dissenting opinion and the same shall be treated as an annexure to the award. If the dissenting opinion is annexed to the award, the court before whom the may be questioned, will have the benefit of the dissenting opinion as well.

It appears to be settled law, at any rate in international arbitration, that a dissenting opinion is not part of the award and, if given, it remains on record only as a part of information, (see Fouchard etc. 1999 page 1403) unless the arbitration rules provide otherwise. In ICC arbitration, the dissenting opinion is not examined by the International Court of Arbitration under Article 27 of the Rules, as the court takes the dissenting opinion only a piece of information.

Thus, the existing provisions appear to be sufficient and no amendment appears to be necessary.

13. The Law Commission notices that in International Arbitrations the dissenting opinion is not a part of the award, and, if given, it remains on record only as a part of opinion, unless the arbitration rules provide otherwise. Counsel for the respondent points out that the arbitration between the parties was an International Commercial Arbitration under Section 2(1)(f) of the Act since respondent is a French Company and the contract was a purely commercial transaction between the parties. The said legal position would, according to the respondent, apply to this case.

14. Counsel for the respondent relies on Ram Narain Ram and Ors. v. Pati Ram Tewari and Ors. AIR 1916 Patna 156. In this case, the Patna High Court held that it is enough if the award is signed by the majority of the arbitrators and the refusal of the minority of arbitrators to sign will not affect its validity, if they were present throughout the proceedings and took part in the deliberations.

15. He also relies on R. Dashratha Rao and Ors. v. K. Ramaswamy Iyenagr (umpire) and Ors. AIR 1956 Madras 134 wherein the Court held that the award might be pronounced by all the arbitrators or by majority of them, and the failure of one of the arbitrators to sign the award does not seem to affect the validity of the award.

16. Respondent relies on Section 29 of the Act to state that in an arbitral proceeding with more than one arbitrator, any decision of the Arbitral Tribunal shall be made by majority, unless otherwise agreed upon. Since there is no agreement to the contrary in the present case, by default the award could be made by majority of the arbitrators, and such an award would be valid and enforceable.

17. The submission of Learned Counsel for the respondent therefore is that the award of the majority of arbitrators is the award of the Tribunal and it is a complete, valid and enforceable award and that the law on this aspect as it stood before the enactment of the 1940 Act, under the 1940 Act, and after the commencement of the 1996 Act has remained unchanged.

18. Counsel for the respondent submits that in view of the decision of Hon'ble Supreme Court in UOI v. Popular Construction Co. , the period of limitation cannot be extended by the Court beyond the period of 30 days. The bar of limitation is absolute. He submits that under the scheme of the Act, time is of essence and limitation has been strictly prescribed to further the cause of speedy disposal of arbitration cases. He refer to the decision of the Supreme Court in Furest Day Lawson Ltd. v. Jindal Exports Ltd. notes that the object of the Act is to provide speedy and alternative resolution of disputes.

19. On the other hand, Learned Counsel for the petitioner submits that under Section 34(3) of the Act, the application for setting aside the award is required to be made within three months from date on which the party making the application has received the arbitral award, or if a request is made under Section 33, (for correction and interpretation of the award or additional award) from the date on which the request has been disposed of by the Arbitral Tribunal. He submits that the use of the expression "Arbitral Tribunal" in Section 34(3) of the Act indicates that the award is not complete, valid and enforceable unless all the arbitrators constituting the Tribunal either sign the same award, or give their respective awards. He also referred to the provisions of the Code of Civil Procedure contained in Order 41 R. 31, 34 & 35.

20. He submits that the expression "judgment" is defined in Section 2(9) CPC to mean the statement given by the Judge on the ground of a decree or order, and contends that the judgment is required to be signed by all the judges. He wishes to apply the same analogy to arbitrations and to an arbitral award. It is also contended by the petitioner, as was contended by the respondent, that the legislature contemplated a single arbitral award.

21. Petitioner further submits that the reasons for the minority of arbitrator(s) not signing the award cannot be other than those to be found in the Act, and have to be of the kind contained in Section 14(1)(a) and 14(1)(b) of the Act. He relies on Mahanagar Telephone Nigam Ltd. v. Siemens Public Communication Network Ltd. , wherein this Court examined the question whether the document before it was an award in terms of the provisions of the Act, and came to the conclusion that since the said document was violative of Sections 31(2) and 31(4) of the Act, and was hit by 34(2)(a)(v) of the Act, and same could not be termed as an award. In that case, the dissenting arbitrator had not signed the majority award. The reasons for his omission to sign the majority award were also not stated in the majority award. The court after examining the facts of that case concluded that what was termed as a majority award was in fact only a draft award.

22. Based on this decision, it is contended by the petitioner that even a perusal of the majority award in paragraph 6 shows that what was discussed between the arbitrators on 12.11.2001 was not the majority award as signed and published by the two arbitrators, but only a draft award, since para 6 records that the Presiding Arbitrator Mr. B.R.Nair and the arbitrator Mr. T.Narayanamoorthy "were more or less" in agreement, while the third arbitrator, namely, Mr. Ranbir Khanna disagreed with the other two and desired to make "a separate award". It is claimed that there was no consensus ad idem even between two majority arbitrators since they were not in complete agreement at the time when the discussion took place.

23. By referring to Section 32 of the Act petitioner contends that the Act contemplates the passing of a "final arbitral award," which could only mean an award given by all the arbitrators either jointly or on their own. He refers to Section 33 of the Act, to state that correction of an arbitral award can be applied for only on receipt of all the awards/decisions. If there are more than one awards, time for applying for correction etc. under Section 33 would begin to run only from the time all the awards/decisions have been received. It is further contended that the power to correct an arbitral award vests with the entire Arbitral Tribunal and not just by the majority arbitrators whose award is sought to be corrected. Counsel for the petitioner also refers to Shyam Telecom Ltd. v. ARM Ltd. to contend that it is only upon the death, physical incapacity to proceed, absence or refusal of an arbitrator that the arbitrator may not sign an arbitral award where the majority has proceeded to sign and communicate the same. He submits that the legislature has not fixed any time under the Act for making of the award and, therefore, no consequences should flow on account of the delay in making of the minority award/decision, so as to take away the valuable rights of the parties to file objections to the majority award.

24. Counsel for the petitioner relies on M/s Girdhari Lal & Sons. v. Balbir Nath Mathur and Ors. (para 16) to contend that the foremost task of a Court is to find out the intention of the legislature. Where words are clear and unambiguous, no question of construction arises. Such words ordinarily speak for themselves. Intention of the legislature and not the words used are paramount. Parliamentary intention may be gathered from several sources. Firstly from the statute itself, next from the preamble to the statute, then from the Statement of Objects and Reasons and thereafter from Parliamentary debates, reports of Committees and Commissions, which preceded the legislation and finally from all legitimate and admissible sources which may through light. Regard must be had to legislative history too.

25. Petitioner also relies on Kailash v. Nanhku and Ors. which states that rules of procedure are the handmaids of justice. The object of prescribing procedure is to advance the cause of justice. No party should ordinarily be denied from participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not be construed in a manner which would leave the Court helpless to meet extraordinary situations to further the ends of justice.

26. He also refer to para 14 of the decision in MTNL (supra) wherein this Court has taken the view that the observations in Russel on Arbitration, 21st edition were in regard to the U.K. Arbitration Act, 1996 and since they deal with particular provisions of that statute, they could not lifted and applied to the Indian statute which governs the entire gamut of arbitral proceedings. He lastly submits that the reliance placed on the report of the Law Commission by the respondent is misplaced since it is only recommendatory and that the amendments proposed by the Law Commission have not yet been incorporated in the Act.

27. Having considered the submissions of the rival parties, I am of the view that the objections filed by the petitioner are beyond limitation and are liable to be dismissed on that ground alone.

28. Section 31(1) of the Act makes it clear, and this is the common case of both the parties, that the law contemplates the passing of only one arbitral award. Reading of Section 31(2) makes it clear that in an arbitral proceedings before a Tribunal consisting of more than one arbitrator, the award of the Tribunal would be sufficiently made, if it is signed by the majority of arbitrators, so long as the reason for the omission to sign by other arbitrators who are in minority is so stated in the award itself. It therefore follows, that a document containing the opinion of a minority of arbitrators cannot be called an award within the meaning of Section 31 of the Act. Apart from the decisions cited by the Respondent, I find that a Division Bench of this Court in Fertilizer Corporation of India Ltd. v. IDI Management (USA) and Ors. has held that opinion of a minority of arbitrators cannot be looked at for any purpose. The award with which the law is concerned is the award of the majority. Reasons given by the minority are not reasons of the majority and as such does not form part of the majority.

29. Reliance placed by the petitioner on Order 41 Rules 31, 34 & 35 of CPC is not only misplaced, rather it supports the view that I am inclined to take. Order 41 Rule 31, states that the judgment of the Appellate Court shall at the time that it is pronounced be signed and dated by the "judge or judges concurring therein". Rule 34 states that where the appeal is heard by more judges than one, any judge dissenting from "the judgment of the Court shall state..." his decision or order in writing, and "he may state his reasons for the same." Rule 35 (4) is important and it reads: "The decree shall be signed and dated by the judge or judges who passed it. Judge dissenting from judgment need not sign decree.- Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree".

30. From the above provisions it is clear that: The judgment of the Appellate Court is the judgment of the majority of Judges (see Section 98 CPC).

(ii) The Judgment of the Appellate Court need not be signed by the Judge or Judges who do not concur in the same.

(iii) The dissenting judge is only required to give his decision or order. He is not obliged to state his reasons. (The same provision i.e. Rule 34 uses "shall" and "may" in relation to these two functions of a Judge)

(iv) It is not necessary for the dissenting Judge to sign the decree. Therefore, the decree is valid and enforceable even when it is not signed by all the Judges. Similarly, under the scheme of the Act, it is:

(i) The award of the majority which is the award of the Tribunal;

(ii) The arbitrators in minority may not sign the majority award.

(iii) When the reasons for the omission to sign the majority award are recorded in the award itself, the decision of the minority arbitrators gets embedded in it. Unlike Order 41 Rule 34 CPC, there is no obligation cast on the arbitrator(s) who may be dissenting and is/are in minority to communicate his/their decision. However, even a dissenting judge is not obliged to give his reasons.

(iv) The minority arbitrator(s) do not necessarily have to sign the majority award and it is still valid and enforceable. The scheme under the Act in relation to the aspect being discussed herein, is, therefore, similar with the scheme under the CPC.

31. Where the Tribunal is a multi member body (it can only be an odd number under Section 10) and there is unanimous award by all the members of the Tribunal, it does not raise any difficulty of the kind presented in this case. However, there is a possibility that a majority of the arbitrators agree on a particular form of award, and a minority does not. In that situation the minority is not obliged to sign an award prepared by the majority of arbitrators. It is open to the minority of arbitrators to prepare their own opinion and communicate it to the parties. This may happen either before, simultaneously with, or after the award of the majority is made and communicated to the parties. It is also open to the minority of arbitrators not to pen down their opinion at all. Where the minority gives its opinion even before the majority award is made and communicated, since it is only an opinion and not an arbitral award, it has no efficacy as an award and it cannot be enforced. It has no bearing on the rights and obligations of the parties as determined by the majority of arbitrators. Consequently, it is incapable of, and not required to be challenged or objected to as an award under Section 34 of the Act. Only when the award of the majority of arbitrators is received, which is the award of the Tribunal, it would give a cause to the aggrieved party/parties to object to the same. Limitation would therefore begin to run from the time the majority award is communicated to the party concerned.

32. In a case where the minority of arbitrators choose not to give their opinion unless agreed to by the parties, in my view should not prevent the making of a majority award by the Tribunal. By preferring not to sign the majority award, or by failing or refusing to give its opinion altogether, the minority of arbitrators cannot defeat or frustrate an arbitral proceeding. This appears to be the reason why the law states that it "shall be sufficient" for the majority of the Arbitral Tribunal to sign the award, so long as they disclose the reasons for the omission of signatures of the minority of arbitrators.

Once the award is signed and communicated by the majority of arbitrators, (since the decision of the panel of arbitrators is to be governed by majority under Section 29, unless otherwise agreed) the parties are put to notice, and are aware of the determination made by the Arbitral Tribunal. Each party knows his rights and obligations as crystalised in the award of the majority and the consequences flowing there from. If a party is aggrieved by the majority award, he can and must challenge the same within the time provided for the purpose. His grounds of challenge have to be gathered from the majority award and the arbitral proceedings. They are not dependent upon the giving of the minority opinion by the minority of arbitrators. If and when it is given, such a minority opinion(s) may be used by a party challenging the award to bolster his challenge. However, the aggrieved party cannot await the giving of the minority opinion to challenge the majority award, which binds him and affects his rights.

34. Consequently, it is immaterial whether the opinion of the minority of arbitrators, if any, is made available to the parties at the same time as the award of the majority or not. From the decisions cited above, it is evident that it has always been the law that an award which is signed by the majority of arbitrators is a valid and enforceable award. The contention of the petitioner that an award, of necessity, has to be signed by all the arbitrators, or that even if there are two or more opinions, they should all be expressed in writing and communicated by the arbitrators before a valid and binding arbitration award comes into being, therefore, does not appear to be correct and is rejected. This submission is also not in consonance with Section 31(2) of the Act, which provides that the signature of the majority of all arbitrators of the Arbitral Tribunal shall be "sufficient". The language used by the legislature in Section 31 of the Act is clear, and on a plain reading of the section no other reasonable conclusion can be reached. It may be noted that in spite of the language used by the Parliament in Section 10 read with Section 14 of the Arbitration Act, 1940, the Madras High Court in R. Dashratha Rao (supra) took the view that an award might be pronounced by a majority of arbitrators, and the failure of the minority to sign the Award does not affect the validity of the Award. Under the 1996 Act, the Parliament has made it explicit and clear that it shall be "sufficient" if the award is signed by the majority of arbitrators and the reasons for the omission of the minority to sign are stated in the award.

35. In my view the limitation for filing of objections would begin to run from the date the parties are put to notice of the majority award. That to my mind is also the purposive interpretation of the provisions of the Act. The party succeeding before the Arbitral Tribunal, in whose favor the award has been rendered, would be left high and dry if it is taken that the majority award cannot be challenged or executed unless all the arbitrators give their respective opinions. Such an interpretation would have the potential to frustrate the scheme of the Act whenever there is a multi-member Arbitration Tribunal constituted. The object of the Act is to provide speedy and alternative resolution of disputes. This would be defeated if one or more arbitrators in minority choose to either delay the publication of their opinion, or choose not to give it at all.

36. The contention of Learned Counsel for the petitioner that the word "sufficient" used in Section 31(2) of the Act means that the reasons for omission of signature of the minority of arbitrators must to be those found within the provisions of the Act itself, and particularly in Section 14 thereof is also incorrect. Sub section (2) of Section 31 does not deal with the reasons for which the minority of the arbitrators may omit to sign the award. The reason of dissent with the majority is a reason good enough and is also contemplated by the Act, since Section 29 talks of the decision being made by majority of all arbitrators. This obviously contemplates the possibility of dissent by a minority of arbitrators. Shyam Telcom Ltd. (supra) is not relevant to, and does not advance this submission. Since the language used is plain, I am inclined to adopt the first rule of interpretation, i.e., of accepting the plain and grammatical construction of the section. The decision cited by the petitioner on the aspect of interpretation of statutes, do not, to my mind support the petitioner. In M/s Girdhari Lal & Sons (supra), the Supreme Court held that the general view is to ascertain the intention of the legislature, and such construction should be preferred which advances the purpose and objects of the legislation, and that a construction according to the plain language should ordinarily be adopted, unless it leads to anomalies, injustice of confusion. Since the language used is plain, I am inclined to adopt the first rule of interpretation, i.e., of accepting the plain and grammatical construction of the section. The submission that the aspect of limitation is merely procedural is incorrect, since on the expiry of the period of limitation, one of the parties gets vested with valuable rights. In Popular Construction Co. (supra) the Hon'ble Supreme Court has already interpreted the language of Section 34(3) and the proviso thereto. It has been held by the Supreme Court that the expression "but not thereafter" would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act and would, therefore, bar the application of Section 5 of Limitation Act. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" otiose. No principle of interpretation would justify such a result.

37. The argument based on the use of the expression "Arbitral Tribunal" in Section 34(3) in relation to the correction or interpretation of the arbitral award under Section 33 of the Act is also fallacious. Since the Arbitral award is that of the majority of arbitrators (unless it is unanimous), it is only that award of which correction or interpretations can be sought in terms of Section 33 of the Act. Obviously, it would be for the majority of arbitrators who made the majority award to make the correction or give an interpretation, as the case may be, though it may require that the hearing is conducted before the Arbtiral Tribunal of which the arbitrator(s) in minority is/are also a member(s). The majority award is the only award and merely because it is not unanimous, it does not cease to be an award of the Arbitral Tribunal.

38. The use of the expression "final arbitral award" in Section 32 of the Act (which deals with termination of proceedings) is to be understood in the context of, and in contradistinction with an order or direction under Section 17 of the Act. It does not support the contention of the petitioner that the award has to be by all the members of the Tribunal.

39. The argument that the majority was not having consensus ad idem when they met on 12.11.2001 since they say that they "more or less" were in agreement is also meaningless. The fact of the matter is that they have made and communicated their majority award and recorded the reason for the omission of the minority arbitrator from signing the same. Though "Russel" on arbitration is based on the English Arbitration Act, what is of relevance is that the position of law stated therein is also as is expounded by our Courts, as noticed herein above.

Though it is correct that the recommendation of the Law Commission do not have binding force, what is of relevance is the fact that the petitioner has not disputed before me the statement of the law recorded in the said report of the Law Commission. The Law Commission has noted the settled law that in International Arbitrations, the dissenting opinion is not a part of the award, and if given, it remains on record only as a part of information, unless the arbitration rules provides otherwise. I have gone through the arbitration agreement in the present case. It does not require that the arbitral award has to be unanimous, or that an opinion of the minority of arbitrators is to form part of the arbitral award.

40. Alternatively, counsel for the petitioner submits that the issue raised by him is with regard to the starting point of limitation, and not with regard to the point of time at which it will come to an end. However, in view of the conclusion reached by me, I am not inclined to accept his submission that the period of limitation would begin to run from the date of communication of the opinion of the minority.

41. Consequently, I hold that the objections filed by the petitioner are beyond the period of limitation prescribed under Section 34(3) of the Act and the delay is beyond the period of 30 days and is, therefore, not condonable.

42. I, therefore, dismiss the same, leaving the parties to bear their respective costs.