JUDGMENT : M.M.SUNDRESH, J. Prayer in O.S.A.No.318 of 2019: Appeal filed under Section 37 of the Arbitration and Conciliation Act to set aside the order dated 06.03.2019 made in O.P.No.312 of 2018. Prayer in O.S.A.No.319 of 2019: Appeal filed under Rule 9 of O.S.Rules r/w Section 36 of the Arbitration and Conciliation Act to set aside the order dated 06.03.2019 made in O.P.No.313 of 2018. These two appeals have been filed by the appellant seeking to invoke Section 37 of the Arbitration and Conciliation Act, 1996 to set aside the award passed by the learned Arbitrator while dismissing the counter claim filed by the appellant and the dismissal of the applications filed invoking Section 34 of the Arbitration and Conciliation Act before the learned Single Judge. 2. The brief facts which are required for adjudication of these appeals are as follows: 2.1. The respondent in both the appeals being the husband and wife, having their respective accounts operated by them by logging in with the appellant, who is the broker trading in commodities. These accounts are being operated from time to time by the respondents. However, the Manger incharge by name Venugopal Reddy was also having private transaction with the respondents as could be seen from the documents filed by the appellant before the learned Arbitrator. This Venugopal Reddy appears to have committed fraud by defrauding many persons including the respondents. There were criminal proceedings initiated against him apart from the insolvency petition field by him. In the insolvency petition filed, the respondents were shown as creditors. 2.2. The respondents filed claim petition inter alia contending that they have lost money as the said Venugopal Reddy was working as Manager of the appellant and, therefore, on the principle governing vicarious liability, the appellant is responsible. The money was collected by Venugopal Reddy on behalf of the appellant. 2.3. The appellant contended in the counter claim and by way of counter affidavit inter alia stating that the transaction between the respondents and Venugopal Reddy were distinct and different and in the accounts operated by the respondents, actually some amount is due to the appellant. The documents have been filed to show the accounts being operated by the respondents by logging in with the appellant. The documents filed by the appellant would indicate that the said Venugopal Reddy has received hand loan from the respondents. 2.4. The documents have been filed to show the accounts being operated by the respondents by logging in with the appellant. The documents filed by the appellant would indicate that the said Venugopal Reddy has received hand loan from the respondents. 2.4. The learned Arbitrator though not granted the claim amount as sought for nonetheless passed an award against the appellant on the principle of vicarious liability as Venugopal Reddy received some amount from the respondents. 3. Before the learned single Judge, the appellant contended that two primary aspects have not been taken into consideration by the learned Arbitrator notwithstanding the materials placed before him. There exists a private agreement between Venugopal Reddy and the respondents and the operation of the accounts online by the respondents with the appellant. Incidentally, it is submitted that the communication dated 07.12.2016 clearly indicates that the respondents knew about the facts as contended by the appellant to the effect that there were transactions between them and Venugopal Reddy and certain amount is due to the appellant from them. 4. The learned Single Judge did not go into the said issue as it was felt that Section 34 of the Arbitration and Conciliation Act does not facilitate such an exercise. Accordingly, on the premise that the view of the arbitrator, as could be classified as either possibly or probably, there is no need to exercise the power under Section 34 of the Arbitration and Conciliation Act as the case on hand would not be amenable for such an exercise. 5. Before the learned Single Judge, for the reasons known, the respondents have chosen not to appear and the same position continues before us as well. In fact, when the matter came up for hearing on the last occasion, taking note of the fact that the respondents have been served and their names having been printed in the cause list, the Court adjourned the matter, after noting that there was adequate service of notice since the endorsement is one of refusal. Unfortunately, despite service of notice and the names of the respondents having been printed, with more than adequate opportunities, there is no appearance on behalf of the respondents. Therefore, we are inclined to proceed with the matter on merit. 6. Learned counsel appearing for the appellant reiterated the aforesaid contentions made. Unfortunately, despite service of notice and the names of the respondents having been printed, with more than adequate opportunities, there is no appearance on behalf of the respondents. Therefore, we are inclined to proceed with the matter on merit. 6. Learned counsel appearing for the appellant reiterated the aforesaid contentions made. In sum and substance, it is contended by him that the aforesaid two arguments raised in respect of documents have not been considered either by the Arbitrator or by the learned Single Judge. Therefore, the rigour of Section 34 of the Arbitration and Conciliation Act would apply and the materials having not been considered would be a ground to set aside the award. The learned counsel further submitted that the aforesaid materials are not even disputed by the respondents. Under those circumstances, there is no need to call for a finding as the accounts were operated by the respondents and the documents filed are the documents signed by them. In such view of the matter, the award requires to be interfered with as confirmed by the learned Single Judge. It is further submitted that the award can be interfered with when there is unintelligible reasoning. The learned Arbitrator while not considering the material has given his own reasoning on the basis of vicarious liability. In support of his contention, the learned counsel appearing for the appellant placed reliance on the judgment of Apex Court in Dyna Technologies Pvt Ltd., v. Crompton Greaves Ltd reported in MANU/SC/1765/2019 wherein it has been held as follows:- “36. When we consider the requirement of a reasoned order three characteristics of a reasoned order can be fathomed. They are: proper, intelligible and adequate. If the reasoning in the order are improper, they reveal a flaw in the decision-making process. If the challenge to an award is based on impropriety or perversity in the reasoning, then it can be challenged strictly on the grounds provided under Section 34 of the Arbitration Act. If the challenge to an award is based on the ground that the same is unintelligible, the same would be equivalent of providing no reasons at all. If the challenge to an award is based on impropriety or perversity in the reasoning, then it can be challenged strictly on the grounds provided under Section 34 of the Arbitration Act. If the challenge to an award is based on the ground that the same is unintelligible, the same would be equivalent of providing no reasons at all. Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 37. At this juncture it must be noted that the legislative intention of providing Section 34(4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits. 38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34(4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced. x x x 41. Interestingly, the factual narration is coupled with the claimant’s argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimant’s claim. Further, it has reduced the reasons for respondent’s defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned.” 7. We find considerable force in the submission made by the learned counsel appearing for the appellant. When the matters are placed before the learned Arbitrator supported by adequate pleadings along with documents, a duty is imposed upon him to consider them. A finding given in ignorance of these materials would certainly be amenable for interference under Section 34 of the Arbitration and Conciliation Act. Therefore, it is not a possible or probable view especially when the documents marked by the appellant constitute the documents signed and sent by the respondents. 8. We are quite conscious of the law laid down by the Apex Court that there cannot be any modification or allowing of claim in exercise of power under Section 34 of the Act or Section 35 of the Act, as the case may be. However, when we are dealing with the case where the materials placed were not considered which constitute a communication sent by the respondents stating that their liability to the appellant can be adjusted, they obviously constitute primary materials to be considered before coming to a conclusion. Ignoring those materials without discussing them and coming to the conclusion on the question of probability cannot be sustained in the eye of law. Ignoring those materials without discussing them and coming to the conclusion on the question of probability cannot be sustained in the eye of law. There is obviously an element of applicability which is available to the arbitrator and that is the reason why the legislation has thought it fit to eschew the rigour of the Indian Evidence Act. However, the Arbitrator is expected to pass an award considering the relevant materials. Inasmuch as the Arbitrator has come to the conclusion, we have not hesitation in setting aside the award as confirmed by the learned Single Judge. We feel that it is the case which would come under the scope adumbrated under Section 34 of the Arbitration and Conciliation Act. 9. Accordingly, the award as confirmed by the learned single Judge stands set aside making it clear that setting aside of the award will not stand in the way of the respondents to workout their remedy afresh, if law so provides. 10. The original side appeals stand disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.