'Requisition Of Record From Arbitral Tribunal Not Akin To Remanding Matter': Madhya Pradesh High Court

Justice Anand Pathak was essentially dealing with a writ petition moved by the Petitioner who was aggrieved by the order of the commercial court, whereby it sought for original record of arbitrator before considering the application U/S 34 of the Arbitration and Conciliation Act, 1996.

The case of the Petitioner was that the Respondent company's application to set aside the arbitral award U/S 34 of the Act was dismissed by the lower court, against which the Respondent had preferred an appeal U/S 37 of the Act. Hearing the said appeal, a division bench of the Court quashed the order passed by the commercial court. It had remitted the matter to the court below for adjudication of the objections preferred by the Respondent in the application U/S 34 of the Act by passing a speaking order.

Reconsidering the matter, the Lower Court decided to set aside the award and further remanded the matter to arbitrator for adjudication on the basis of documents and pleadings advanced by parties. Taking exception to said order, the Petitioner approached the Court, referring to the decision of the Apex Court in Kinnari Mullick & Anr. v. Ghanshyam Das Damani, corollary to which a division bench of the Court held that while deciding the application U/S 34 of the Act, the Court below has no jurisdiction to remand the matter to the arbitrator for afresh decision. Accordingly, the order by the commercial court to remit the matter to the arbitrator was set aside.

Thereafter, matter got revived again before the commercial court, which later on in the proceeding, passed an order, directing the requisition of original record of arbitrator before hearing the parties finally to decide the application U/S 34 of the Act. The Petitioner again approached the Court challenging the said order.

The Petitioner submitted that the matter was pending for a long period before the commercial court and instead of deciding the case, it had asked for original record of the arbitrator. He argued that the lower court was effectively remanding the matter to the arbitrator, which was not permissible. Relying upon the decision of the Supreme Court in I-Pay Clearing Services Private Limited v. ICICI Bank Limited, he further submitted that the court below had erred in calling the record as it amounted to remanding the matter to the Arbitral Tribunal.

Supporting the impugned order, the Respondent argued that the lower court had called for the record and had not passed an order to remand the matter and therefore, no case for interference was made out. They submitted that the commercial court would consider the rival submissions after requisition of record in original from Arbitral Tribunal.

Considering the documents on record, the Court opined that by ordering requisition of the record, the lower court was trying to fathom the controversy in correct perspective so as to conclude it finally. Therefore, it observed that the contention raised by the Petitioner was misplaced.

The Court further examined the provisions U/S 34 of the Act along with the observations of the Apex Court in ICICI Bank Limited case and noted that a combined reading of the two rendered the case of the Petitioner devoid of merits-

Perusal of Section 34 (2) (a) of the Act reveals that Court may set aside the award if the party making the application establishes on the basis of record of arbitral tribunal, meaning thereby that Court can certainly go for perusal of the record and therefore, requisition of record from arbitral tribunal is not akin to remanding the matter to arbitral tribunal but to ascertain the exact nature of dispute through record of case. Therefore, case of the petitioner is not supported by relevant provision itself.

Since it is not a case of remand per se, therefore, judgments relied upon by the petitioner are not applicable in the present set of facts. The Commercial Court is within a domain to call for the record from arbitral tribulnal for deciding the application under Section 34 (1) and (4) of the Act.

With the aforesaid observations, the Court refused to interfere with the impugned order and accordingly, the petition was dismissed.

Case Title: Anil Kumar Tripathi Vs. Doorsanchar Nigam Ltd. (BSNL)

Citation: 2022 LiveLaw (MP) 106

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