PRASENJIT MANDAL,J. - (1.) THIS application is directed against the Order No.48 dated March 31, 2010 passed by the learned Judge, City Civil Court, 2 nd Bench, Calcutta in Misc. Case No.216 of 2004 thereby dismissing an application for adducing evidence at the hearing of an application under Section 34 of the Arbitration and Conciliation Act, 1996. Parties entered into several agreements dated November 1, 2001 relating to grant of lease of various goods, articles, equipment to be used by the opposite party no.1 at 49B, 2 Chittaranjan Avenue, Kolkata-700012. Various disputes arose between the parties and even the opposite parties did not deliver the possession of the office space after expiry of the period of licence. Nor did the opposite party pay the money as per just demands of the petitioners. Amongst others there was a clause for arbitration. The petitioners received a letter from the arbitrator, namely, opposite party no.2 stating that he had been appointed as arbitrator by the opposite party no.1 but the petitioners did not receive any notice of the appointment of the arbitrator and the terms of agreement relating to appointment as agreed on November 1, 2001 had not been adhered to. Accordingly, the petitioners filed a Misc. No.2374 of 2003 before the learned Chief Judge, City Civil Court, Calcutta under Sections 12, 13 and 15 of the Arbitration and Conciliation Act, 1996 seeking removal or cancellation of the appointment of the opposite party no.2 as arbitrator. The said misc. case was fixed on November 27, 2003 for hearing but no formal order of stay was granted. In the mean time, on November 25, 2003, the opposite party no.2 passed an award in favour of the opposite party no.1 without giving any opportunity to the petitioners.
(2.) UNDER the circumstances, the Misc. Case No.2374 of 2003 having become infructuous, the petitioners filed a separate application under Section 34 of the Arbitration and Conciliation Act, 1996 being the Misc. Case No.216 of 2004 for setting aside 3 the arbitral award and in that misc. case, the petitioners filed an application to adduce oral evidence. That prayer was rejected by the impugned order. Being aggrieved, this application has been filed. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the facts as narrated above are not in dispute. Now, the question whether the petitioners are entitled to adduce oral evidence in an application under Section 34 of the 1996 Act. In disposing of an application under Section 34, the concerned Court is to consider whether the said application should be allowed or not, in terms of the provisions of the Sub-Sections (2) and (3) of Section 34 of the 1996 Act. Therefore, an arbitral award may be set aside by the concerned Court only on the limited grounds as stated in Sub-Sections (2) and (3) of Section 34 of the said Act and not on other grounds. The petitioners have contended that the concerned Court did not consider whether the petitioners were given proper opportunity by considering the records and the finding of the arbitrator or not. The petitioners are required to prove that the provisions of Sub-Sections (2) and (3) of Section 34 of the Act have not been complied with in disposing of the proceeding by the learned Arbitrator. 4 Mr. Swapan Kumar Mullick appearing on behalf of the petitioners submits that the opposite party no.1 and the learned Arbitrator, that is, the opposite party no.2 acted collusively and for that reason, the arbitral proceeding had been disposed of by passing an award on November 25, 2003 on knowing fully well that the next date of hearing of the misc. case was fixed on November 27, 2003. So, from the conduct of the arbitrator, it appears that there is a collusion between the opposite party no.s 1 & 2 and as such, these factors are to be proved by adducing evidence. With due respect to Mr. Mullick, I am of the view that the question of adducing oral evidence is not necessary for the purpose as stated by the petitioners. The record of the arbitral proceeding will show, if notice had been served upon the petitioners or not. The learned Arbitrator so appointed is to proceed with the arbitral proceedings in accordance with the provisions of the 1996 Act and if there is any grievance, the appropriate remedy is to file an application under Section 34 of the said Act and such a recourse has been resorted to by the petitioners. So, the contention of Mr. Mullick in this regard cannot be accepted.
(3.) MR . Mullick has also contended that the petitioners requested the learned Arbitrator not to proceed with the arbitral proceeding, but the learned Arbitrator did not pay any heed. The petitioners filed the application being Misc. Case No.2374 of 2003 5 for cancellation of the appointment of the arbitrator and knowing such proceeding very well, the learned Arbitrator had passed the award two days prior to the date of hearing of the said misc. case. In this regard, I am of the opinion that the petitioners were very much aware of the arbitral proceedings and the learned Arbitrator is to proceed with the arbitral matter in accordance with the provisions of the said Act. The question whether the learned Arbitrator had proceeded properly may be tested by filing of an application under Section 34 of the Act. The learned Court is to pass appropriate orders on a proceeding under Section 34 of the Act. The question whether the appointment of the opposite party no.2 was in consonance with the agreement is to be dealt with in the proceeding under Section 34 of the Act. The learned Court is to arrive at a conclusion on the basis of the arbitral proceeding. Any extraneous matters, such as, adducing oral evidence possibly should not be allowed to be introduced. On the other hand, Mr. Shaymal Chakraborty appearing on behalf of the opposite parties refers to the decisions of Fiza Developers and Inter-Trade Pvt. Ltd. v. AMCI (India) Pvt. Ltd. & anr. reported in 2011(1) ICC 728, Fiza Developers and Inter-Trade Pvt. Ltd. v. AMCI (India) Pvt. Ltd. & anr. reported in 2009(2) CLJ(SC) 171 and State of U.P. V. Ram Nath International Construction (P) Ltd. reported in (1996) 1 SCC 18 and thus, he submits that in a proceeding under Section 34 of the said Act, the 6 question of framing all issues and adducing evidence thereon does not arise. Such a proceeding cannot be treated as adversarial suit to adjudicate the matter by recording evidence. The scope of interference is very much limited to the points referred to in Sub-Sections 2 & 3. The proceeding under Section 34 is not like a regular suit and so, the question of framing issues or adducing evidence does not arise at all.;