The Supreme Court of India while working out on a case has held that proceedings under Section 34 of Arbitration and Conciliation Act will not ordinarily require anything beyond the record that was before the arbitrator and only in an exceptional case, additional evidence can be permitted to be adduced.

The decision came out during the hearing of a petition against the High Court's order which grants an opportunity to a party to Section 34 Proceedings to adduce additional evidence.

The contentions of the case were whether, in proceedings under Section 34 of the Arbitration and Conciliation Act, seeking to set aside the award, whether the parties can adduce evidence to prove the specified grounds in Sub-Sec (2) to Section 34 of the Act.

The High Court after checking on the details of the case referred the judgment in Fiza Developers and Inter-Trade Private Limited v. AMCI (India) Private Limited.

They allowed the writ petitions and directed the District Judge to "recast the issues" and allow the parties to file affidavits of their witnesses and further allow cross-examination of the witnesses.

The Court noted that after the decision in Fiza Developers, Sec-34 was amended by Act 3 of 2016. 

It said, "The legal position is thus clarified that Section 34 application will not ordinarily require anything beyond the record that was before the arbitrator and that cross-examination of persons swearing in to the affidavits should not be allowed unless absolutely necessary."

Taking about the contentions in the case in hand, it stated that there are no specific averments in the affidavit as to the necessity and relevance of the additional evidence sought to be adduced. The Court also agreed with District Judge's finding that grounds urged in the Section 34 Application can very well be considered by the evidence adduced in the arbitration proceedings and considering the arbitral award.

The Court also stated that when the order of the District Judge didn't suffer from perversity, the High Court, in the exercise of its supervisory jurisdiction under Articles 226 and 227 of the Constitution of India, ought not to have interfered with the order passed by the District Judge.

It said, "The proceedings under Section 34 of the Act are summary proceedings and is not in the nature of a regular suit. By adding sub-sections (5) and (6) to Section 34 of the Act, the Act has specified the time period of one year for disposal of the application under Section 34 of the Act. The object of sub-sections (5) and (6) to Section 34 fixing time frame to dispose of the matter filed under Section 34 of the Arbitration Act, 1996 is to avoid delay and to dispose of the application expeditiously and in any event within a period 16 of one year from the date of which the notice referred to in Section 34(5) of the Act is served upon the other party. In the arbitration proceedings, the parties had sufficient opportunity to adduce oral and documentary evidence. The High Court did not keep in view that respondent Nos.1 and have not made out grounds that it is an exceptional case to permit them to adduce evidence in the application under Section 34 of the Act. The said directions of the High Court amount to retrial on the merits of the issues decided by the arbitrator."

It thus set aside the High Court's judgement. 

The judgement has been given by Justice R. Banumathi and Justice AS Bopanna on 23-09-2019:

Read Judgement Here:

 

Share this Document :

Picture Source :