MIDEX OVERSEAS LTD Vs. DEWAS SOYA LTD

JUDGEMENT

(1.) THE applicant/objector has directed this revision against order dated 26-8-2000 passed by the learned 3rd Addl. District Judge, Indore in M. J. C. 30/99, thereby allowing the application filed on behalf of the non-applicant No. 1 under Section 34 (4) of the Arbitration and Conciliation Act, 1996 (for short the Act of 1996 ).

(2.) BRIEFLY stated the facts of the case arethat on the application of the non-applicant No. 1 under an Agreement of Arbitration between the present applicant and non-applicant No. 1, the non-applicant No. 2, Arbitral Tribunal has passed award dated 1-5-99, in connection with the dispute arose between the parties. On 15-7-99, the applicant/objector filed objections under Section 34 (1) and (2) of the Act of 1996 and prayed for setting aside of the award dated 1-5-99 passed by the Arbitral Tribunal. On filing of the objections the non-applicant No. 1 filed an application under Section 34 (4) of the Act of 1996, praying for adjournment of the proceedings pending before the Trial Court for a period determined by the Court in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other actions as in the opinion of the Arbitral Tribunal to eliminate the grounds stated in the application for setting aside the arbitral award. The aforesaid application filed on behalf of non-applicant was opposed on behalf of the applicant by filing a written reply stating therein that, the non-applicant No. 1 could not be allowed to fill up lacuna, apparent in the award taking advantage of the provisions of Section 34 (4) of the Act of 1996. It is also stated that in view of the grounds raised by the applicant in its application under Section 34 (1) and (2) of the Act of 1996, it is not proper to resume the arbitral proceeding; as the applicant has challenged the jurisdiction of the Arbitral Tribunal to pass the award, as also on the ground of committing misconduct by the said arbitrators in passing the award. Learned Trial Court by the impugned order allowed the application filed on behalf of the non-applicant No. 1 under Section 34 (4) of the Act of 1996, and resumed the arbitral proceeding to the arbitrators for taking appropriate steps with regard to the objections raised in the original application to eliminate the grounds raised for setting aside the award till 28-12-2000. Aggrieved the applicant, has filed this revision.

(3.) ON consent of the learned counsel for the parties, this revision petition was heard on merits at the stage of admission. I have heard Shri A. M. Mathur, learned senior counsel with Shri Satpalsingh for the petitioner and Shri G. M. Chaphekar, learned senior counsel with Shri R. Thanewala for the non- applicant No. 1. Learned counsel for the petitioner contended that as the applicants have made serious allegation of misconduct against the arbitrators and also challenged their appointment and jurisdiction, as such the case should not have been remanded to the arbitrators for filling up the lacuna. The counsel submitted that the objections raised on behalf of the applicant were incapable of elimination by the non-applicant No. 2, arbitrators. Learned counsel also contended that in the application filed on behalf of the non-applicant No. 1, a prayer for resuming the arbitral proceedings was made only with regard to the grounds mentioned in Para 2 of the application; but the learned Trial Court gave opportunity to the Arbitral Tribunal to resume the arbitral proceedings on all the grounds raised on behalf of the applicant in his original objection application. In view of the aforesaid facts the order impugned of the Trial Court is illegal and contrary to the provisions of Section 34 (4) of the Act of 1996 and deserves to be set aside.