Delhi High Court
Kamini Sadh vs Mohan Lal Chander Prakash & Ors on 27 July, 2012
Author: M. L. Mehta
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 129/2008
Date of Decision:27.07.2012
KAMINI SADH ..... Petitioner
Through: Mr.Vijay Babbar, Adv. with Mr.
D.P.Singh, Adv.
versus
MOHAN LAL CHANDER PRAKASH & ORS ..... Respondent
Through: Ms.Anju Jain, Mr.Hitesh, Advs.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L.MEHTA, J. (ORAL)
1. This petition assails the order dated 23.10.2007 of learned ADJ
whereby the petition under Section 34, Arbitration and Conciliation Act
(for short the 'Act') filed in his court against the arbitral award of
Arbitrator, Delhi Hindustani Mercantile Association, was referred back
to the Arbitrator.
2. The dispute had arisen between the parties. The matter was
referred to the Arbitrator, Delhi Hindustani Mercantile Association.
During arbitral proceedings, the Arbitrator had framed three issues, one
of which being as under:
"Whether the claim of the complainant is within the period of
limitation?"
The Arbitrator gave the award dated 30.12.2003. That award was
challenged by way of a petition under Section 34 of the Act before the
ADJ.
3. While dealing with the petition under Section 34 of the Act, the
learned ADJ noted that no finding was returned by the Arbitrator as
regard to the aforesaid issue. In this regard, it was observed as under:
"9. At this stage, this court wish that award is not set aside on
that count and Ld. Arbitrator be given opportunity and time to
give the findings on the point of limitation".
4. Having so observed as above, the learned ADJ gave three months
time to the Arbitrator to resume the arbitral proceedings to decide the
aforesaid issue. The parties were directed to appear before the
Arbitrator and the matter was adjourned by the ADJ for further
proceedings before him. It is this order of the ADJ, which has been
assailed in the present petition.
5. The main thrust of contention of the learned counsel for the
petitioner is that after the arbitral proceedings were terminated by the
Arbitrator, it became functus officio and could not resume the arbitral
proceedings. It is also his submission that the court was either to accept
or reject the award, and could not have referred back the matter to
Arbitrator to resume proceedings. Reference in this regard is made to
Section 32 (3) of the Act, which reads thus:
"32. Termination of proceedings.--
.........
(3) Subject to section 33 and sub- section (4) of section 34,
the mandate of the arbitral tribunal shall terminate with
the termination of the arbitral proceedings".
6. On the other hand, the learned counsel appearing for the
respondent submits that the ADJ was, within his powers and
competence to refer back the matter to the Arbitrator in respect of Issue
No. 3, on which no finding was given by him in the award. To this,
there is no dispute raised by the learned counsel for the petitioner.
7. Moving further, the learned counsel for the respondents draws my
attention to Section 34 (4) of the Act, which reads thus:
" 34. Application for setting aside arbitral award.--
............
............
............
(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
such other action as in the opinion of arbitral tribunal will
eliminate the grounds for setting aside the arbitral award".
8. Giving a conjoint reading to both the Sections namely Section
32(3) and 34(4) of the Act, it would be seen that the provisions
contained in Section 32(3) were subject to the provisions of Section
34(4). That being so, the contention that the arbitral proceedings could
not be resumed, is apparently untenable. If that interpretation is given to
the provision as presented by the learned counsel for the petitioner, that
would make Section 34(4) completely meaningless and redundant. That
could not be the intention of the legislature. The intention is further
gathered as Section 32(3) of the Act is made, subject to the provisions of
Section 34 (4) of the Act.
9. A plain and literal interpretation of Section 34 (4) empowers the
court, in an appropriate case, to adjourn the proceedings for the period
as may be determined, appropriate for giving an opportunity to the
Arbitrator to resume proceedings, so as to eliminate the grounds taken
for setting aside the arbitral award. It is noted that the ground of
limitation had been taken against claim made by the respondent herein
and issue was also framed thereon. To eliminate this ground or to record
otherwise, a finding was required to be returned by the
Arbitrator in this regard. I do not see any infirmity or illegality in the
impugned order. Petition is accordingly dismissed.
M.L. MEHTA, J
JULY 27, 2012/akb
