- (1.) Present Special Appeal arises from the order of the Learned Single Judge dated 23.03.2007 passed in Civil Misc. Writ Petition No.15398 of 2007, Union of India and other Vs. NICCO Corporation Ltd. and others, by which the writ petition has been dismissed.
(2.) It appears that the arbitrator has given the award dated 16.09.2001 to which, respondent no.1 filed the application under section 34 of Arbitration And Conciliation Act, 1996 (hereinafter referred to as "Act") for setting aside a portion of the arbitration award and also claimed the relief for the payment of Rs.23 lacs. Appellant filed application praying that the application under section 34 of the Act was not maintainable. District Judge by the impugned order has rejected the application. After hearing learned counsel for the parties, this Court passed the following order : "The learned counsel for the petitioner submitted that the award could only be set aside on the grounds mentioned in Section 34 of the Act and that the application filed under Section 34 by respondent No.1 did not contain those grounds which are mentioned under Section 34 of the Act. Consequently, the application of the opposite part No.1 was not maintainable and was liable to be rejected. In my view, the submission of the learned counsel for the petitioner is bereft of merit. On this ground itself, the application cannot be treated as not maintainable. The Court, while considering the ground taken by the opposite party No.1 and will pass orders accordingly. The learned counsel for the petitioner further submitted that the relief claimed was only for setting aside a portion of the award and that the award cannot be set aside in part. The submission of the learned counsel for the petitioner is, that under Section 34 of the Act, either the whole award is set aside or not. In my view, the submission of the learned counsel for the petitioner is incorrect. The Court is competent to consider as to which part of the award could be set aside under Section 34 of the Act, if it is found to be severable. The learned counsel for the petitioner also submitted that in any case the claim of Rs.23 lacs cannot be considered by the court and that the Court had no power to enhance the award. In my view, the submission of the learned counsel for the petitioner is incorrect. Section 34(4) of the Arbitration Act is a complete answer to the aforesaid submission of the learned counsel for the petitioner. In a motion to set aside the award, the Court could remit the award to the arbitrator to enable him to clear the defect upon which the motion to set it aside was based. If the claim of a party was not considered by the arbitrator, the Court, under section 34(4) of the Act, could remit the matter back to the arbitrator to resume the proceedings and cure the defect pointed out by the party. But, before the Court could remit the matter back to the arbitrator, the claim must be raised before the Court. Consequently, the claim raised by the respondent does not suffer from any error. In view of the aforesaid, this Court does not find any merit in the writ petition and is dismissed."
(3.) Heard Sri V.K.Goyal, learned counsel for the appellant, Sri Ashish Srivastava, learned counsel for the respondent no.1 and Sri Tarun Verma, learned counsel for the respondent no.2. Learned counsel for the appellant submitted that application under section 34 of the Act is maintainable only on the ground mentioned in sub-section (2) of section 34 of the Act and not on any other ground. He submitted that learned District Judge has rejected the application without considering the preliminary objection that the application has been moved for setting aside the award without taking the ground mentioned in sub-section (2) of section 34 of the Act. Thus, the order of the District Judge is liable to be set aside. Learned Single Judge has also erred in confirming the order passed by the District Judge.;