Sunil Ambwani - (1.) -Heard Shri Bal Krishna Narain, learned counsel for the petitioner.
(2.) AN application under Section 34 of the Arbitration and Conciliation Act, 1996, filed by respondent No. 2 to set aside the arbitral award given by Shri Vijay Verma, Addl. Director (Training), Institute of Judicial Training and Research, U. P. Lucknow in place of Shri A. S. Srivastava, retired Judge of this Court by order dated 4.7.2003, made by the Arbitrator on 30.6.2004 making respondent No. 2 entitled to recover Rs. 3,75,314.13 and Rs. 90,884.75 is pending in the Court of District Judge, Allahabad as Arbitration Case No. 33 of 2004. The petitioner has filed the objections in August, 2005. The arbitration case came up for hearing on 19.5.2006 and then on 23.12.2006. On that day the District Judge, Allahabad, has framed four issues and directed the parties to file evidence by affidavit within a month, fixing 27.1.2007. By this writ petition the petitioner has challenged the order dated 19.5.2006 by which the District Judge, Allahabad has framed the issues. It is contended that the proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 (the new Act) for setting aside the award are summary in nature in which evidence is to be taken by affidavits and thus adopting the rigorous procedure under the Code of Civil Procedure by framing issues and taking evidence is not warranted in law and will delay the decision of the case.
(3.) LEARNED counsel for the petitioner contends that under the new Act the award can be set aside on limited grounds and the application under Section 34 of the new Act to be decided on the basis of material on which arbitrator has given award and not by inviting fresh evidence. It was not necessary to frame issues and to lead evidence as if proceedings were by way of regular suit. The petitioner has relied upon AIR 1962 Cal. 594 (Para 8) and AIR 1992 Cal. 578 (Para 16), in submitting that the procedure under Section 34 under the old Act was summary in nature and that the same view must be followed for deciding matters under the new Act. The new Act does not provide for the procedure to be followed in deciding applications for setting aside the arbitral award. This Section correspond to Section 34 of UNCITRAL Model Law and to Section 30 of the Arbitration Act, 1940. The grounds for setting aside the award are essentially borrowed from Article 5 of the New York convention 1958, which include lack of capacity of the parties to conclude an arbitration agreement or lack of valid arbitration agreement ; opportunity to defend ; the award dealing with matters not covered by arbitration clause or submission agreement ; jurisdiction of arbitral Tribunal ; incompetency ; the composition of the Tribunal ; or that arbitral procedure was not in accordance with the agreement or with the law of the country ; non-arbitrality of the subject-matter of the dispute ; and that the award is in conflict with the public policy of the State.;