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Rajasthan High Court · body

2010 DIGILAW 1917 (RAJ)

Sanjay Kumar Chauhan v. Arbitrator

2010-11-15

M.N.BHANDARI

body2010
JUDGMENT Hon'ble BHANDARI, J.—By this writ petition, a challenge has been made to the award passed by the Arbitrator. Arbitration was under provisions of section 84 of the Multi-State Co-operative Societies Act, 2002 (for short 'the Act of 2002'). 2. Learned counsel for petitioner submits that no remedy is provided under the Act of 2002 to challenge arbitral award. The remedy under section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') is not available to arbitral award pursuant to the provisions of the Act of 2002 apart from that grounds of interference therein are of such nature which does not include the issue raised by the petitioner herein. Accordingly, petitioner has filed this writ petition. 3. During course of arguments, attention of learned counsel for petitioner was drawn towards provisions of section 84 of the Act of 2002 which provides provisions of Arbitration and Conciliation Act, 1996 to apply to arbitration under the Act of 2002. Once such provision exist then the Act of 1996 will apply to the arbitration proceedings under the Act of 2002, which include even further remedies thereupon because it is not provided that the Act of 1996 applies only in regard to procedure to be adopted by the arbitrator. The outcome of the aforesaid is that Act of 1996 is applicable for further remedies also, to which learned counsel for petitioner later on agreed. 4. Now comes the issue as to on what ground challenge to the arbitral award can be made. Reference of section 34 of the Act of 1996 would be relevant for that purpose, which reads as under:- “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). Reference of section 34 of the Act of 1996 would be relevant for that purpose, which reads as under:- “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 part making the application furnishes proof 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 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.” 5. Learned counsel for petitioner has urged that arbitral award is contrary to provisions of law thus the same deserves to be set aside. 6. Learned counsel for petitioner has urged that arbitral award is contrary to provisions of law thus the same deserves to be set aside. 6. In my opinion, if that is the ground then it can be taken up pursuant to Section 34 of the Act of 1996 as the words used under sub-section (2)(b)(ii) i.e. award against the “public policy of India” has been elaborately discussed and explained by the Hon'ble Apex Court in the case of “Oil and Natural Gas Corporation Ltd Vs SAW Pipes Ltd.” ( AIR 2003 SC 2629 ). The words “public policy of India” have been given wide meaning which includes an arbitral award against provisions of law. Thus, ground urged herein can well be taken up before the court competent to hear such matters under section 34 of the Act of 1996. 7. In view of aforesaid, while not entertaining this writ petition, petitioner is given liberty to challenge the award under section 34 of the Act of 1996. The writ petition is accordingly disposed of.