Law Web: Supreme Court: Court should permit recording of evidence in proceeding U/S 34 of Arbitration Act in exceptional circumstances

Based upon Justice B.N. Srikrishna Committee’s report,

Section 34 of the Principal Act has been amended by

Arbitration and Conciliation (Amendment) Act, 2019 as under:-

“7. Amendment of Section 34.—In Section 34 of the principal

Act, in sub-section (2), in clause (a), for the words “furnishes

proof that”, the words “establishes on the basis of the record

of the Arbitral Tribunal that” shall be substituted.”

17. After referring to Justice B.N. Srikrishna Committee’s

report and other judgments and observing that the decision in

Fiza Developers must be read in the light of the amendment

made in Section 34(5) and Section 34(6) of the Act and

amendment to Section 34 of the Arbitration Act, 1996, in Emkay

Global Financial Services Limited v. Girdhar Sondhi (2018) 9

SCC 49, it was held as under:-

“21. It will thus be seen that speedy resolution of arbitral

disputes has been the reason for enacting the 1996 Act, and

continues to be the reason for adding amendments to the said

Act to strengthen the aforesaid object. Quite obviously, if issues

are to be framed and oral evidence taken in a summary

proceeding under Section 34, this object will be defeated. It is

also on the cards that if Bill No. 100 of 2018 is passed, then

evidence at the stage of a Section 34 application will be

dispensed with altogether. Given the current state of the law, we

are of the view that the two early Delhi High Court judgments in

Sandeep Kumar v. Ashok Hans 2004 SCC OnLine Del 106, Sial

Bioenergie v. SBEC Systems 2004 SCC OnLine Del 863, cited

by us hereinabove, correctly reflect the position in law as to

furnishing proof under Section 34(2)(a). So does the Calcutta

High Court judgment in WEB Techniques and Net Solutions (P)

Ltd. v. Gati Ltd. 2012 SCC OnLine Cal 4271. We may hasten to

add that if the procedure followed by the Punjab and Haryana

High Court judgment in Punjab SIDC Ltd. v. Sunil K. Kansal 2012

SCC Online P&H 19641 is to be adhered to, the time-limit of one

year would only be observed in most cases in the breach. We

therefore overrule the said decision. We are constrained to

observe that Fiza Developers was a step in the right direction as

its ultimate ratio is that issues need not be struck at the stage of

hearing a Section 34 application, which is a summary procedure.

However, this judgment must now be read in the light of the

amendment made in Sections 34(5) and 34(6). So read, we

clarify the legal position by stating that an application for setting

aside an arbitral award will not ordinarily require anything beyond

the record that was before the arbitrator. However, if there are

matters not contained in such record, and are relevant to the

determination of issues arising under Section 34(2)( a ), they may

be brought to the notice of the Court by way of affidavits filed by

both parties. Cross-examination of persons swearing to the

affidavits should not be allowed unless absolutely necessary, as

the truth will emerge on a reading of the affidavits filed by both

parties. We, therefore, set aside the judgment in Girdhar Sondhi

v. Emkay Global Financial Services Ltd. 2017 SCC OnLine Del

12758 of the Delhi High Court and reinstate that of the learned

Additional District Judge dated 22-9-2016. The appeal is

accordingly allowed with no order as to costs.”

The legal position is thus clarified that Section 34 application

will not ordinarily require anything beyond the record that was

before the arbitrator and that cross-examination of persons

swearing in to the affidavits should not be allowed unless

absolutely necessary.

18. The question falling for consideration is whether the

present case is such an exceptional circumstance that it was

necessary to grant opportunity to respondent Nos.1 and 2 to file

affidavits and to cross-examine the witnesses is made out. The

affidavit filed by the respondents along with application filed

under Section 151 CPC does not indicate as to what point the

first respondent intends to adduce except stating that the first

respondent intends to adduce additional evidence relating to

the subject of dispute. The affidavit does not disclose specific

documents or evidence required to be produced except stating

that the first respondent intends to adduce additional evidence

or otherwise the first respondent will be subjected to hardship in

the arbitration suit filed by her under Section 34 of the Act. As

rightly contended by the learned counsel appearing for the

appellant that there are no specific averments in the affidavit as

to the necessity and relevance of the additional evidence

sought to be adduced.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7544-7545 OF 2019

M/S. CANARA NIDHI LIMITED Vs M. SHASHIKALA A

R. BANUMATHI, J.

Dated:September 23, 2019

Leave granted.

2. In the application under Section 34 of the Arbitration and

Conciliation Act, 1996 (the Act) seeking to set aside the award,

whether the parties can adduce evidence to prove the specified

grounds in sub-section (2) to Section 34 of the Act, is the

question falling for consideration in these appeals.

3. These appeals arise out of the judgment dated

12.09.2014 passed by the High Court of Karnataka at

Bangalore in Writ Petition Nos.18374-75 of 2010 (GM-RES) in

and by which the High Court set aside the order passed by the

District Judge and directed the District Judge to “recast the

issues” and permit respondent Nos.1 and 2 to file affidavits of

their witnesses and also permitting cross-examination of the

witnesses.

4. Brief facts which led to filing of these appeals are as

under:-

The appellant is the financial institution and the appellant

advanced a loan of Rs.50,00,000/- to respondent No.1 and

respondent Nos.2, 4 and 5 to 8 were the guarantors in respect

of such loan. The loan was secured by a mortgage with

deposit of title deeds and respondent No.1 is also said to have

executed a demand promissory note for repayment of the loan.

There was an arbitration clause in the agreement to resolve

dispute between the parties. It is alleged that the first

respondent did not repay the loan and failed to discharge the

liabilities arising out of the transaction. The dispute between

the appellant and the first respondent was referred to

arbitration to the third respondent-Arbitrator. Before the

arbitrator, both the parties adduced oral and documentary

evidence. The arbitrator passed an award dated 15.12.2007

and directed the respondents to pay an amount of

Rs.63,82,802/- with interest on Rs.50,00,000/- at 14% per

annum from 11.08.2000 and cost of Rs.52,959/-.

5. Assailing the award, respondent No.1 filed AS No.1 of

2008 under Section 34 of the Act in the Court of District Judge

at Mangalore. Before the District Judge, respondent Nos.1 and

2 filed an application under Section 151 CPC to permit the

respondents to adduce evidence. The appellant filed objections

to the said application. By the order dated 02.06.2010, the

learned District Judge dismissed the said application. Holding

that the grounds urged in the application can very well be met

with by the records of the arbitration proceedings and by

perusing the arbitral award, the learned District Judge further

held that in any event, there is no necessity of adducing fresh

evidence in the application filed under Section 34 of the Act.

6. Aggrieved by the dismissal of their application under

Section 151 CPC, respondent Nos.1 and 2 filed writ petitions

before the High Court under Articles 226 and 227 of the

Constitution of India. The High Court by the impugned

judgment allowed the writ petitions and directed the learned

District Judge to “recast the issues” and allow respondent

Nos.1 and 2 to file affidavits of their witnesses and further allow

cross-examination of the witnesses. After referring to the

judgment in Fiza Developers and Inter-Trade Private Limited v.

AMCI (India) Private Limited and another (2009) 17 SCC 796,

the High Court observed that in order to prove the existence of

the grounds under Section 34(2) of the Act, respondent Nos.1

and 2 are permitted to file affidavits of their witnesses. In the

impugned judgment, the High Court concluded that the

reasoning of the District Judge not permitting respondent Nos.1

and 2 to file their own affidavits and affidavits of other

witnesses to prove their case is erroneous and opposed to

settled principles of law. As pointed out earlier, the learned

District Judge was directed to “recast the issues” and the court

below was directed to permit respondent Nos.1 and 2 to file

affidavits of their witnesses and extend corresponding

opportunity to the appellant to place their evidence by affidavit.

Being aggrieved, the appellant has preferred these appeals.

This Court ordered notice vide order dated 06.01.2015 and

further ordered that there shall be stay of the proceedings in AS

No.1 of 2008.

7. Assailing the impugned judgment, Mr. S.N. Bhat, learned

counsel appearing for the appellant submitted that it is wellsettled

that proceedings under Section 34 of the Act is

summary in nature and the scope of the said proceedings is

very limited. It was submitted that the validity of the award has

to be decided on the basis of the materials produced before the

arbitrator and there is no scope for adducing fresh evidence

before the court in the proceedings under Section 34 of the Act.

The learned counsel submitted that the High Court, in the

present case, misread the ratio of the decision of the Supreme

Court in Fiza Developers. It was inter alia urged that in any

event, in the present case, respondent Nos.1 and 2 did not

make out any exceptional grounds for permission to lead fresh

evidence in the proceedings under Section 34 of the Act and

the learned District Judge rightly rejected the application filed

by respondent Nos.1 and 2 for permission to lead evidence.

The learned counsel urged that the High Court erred in

interfering with the order passed by the trial court in

interlocutory application.

8. Reiterating the findings of the impugned judgment of the

High Court, Ms. E.R. Sumathy, learned counsel appearing for

respondent Nos.1 and 2 submitted that in order to prove the

grounds stated in the application filed under Section 34 of the

Act adducing additional evidence is necessary. It was

submitted that respondent Nos.1 and 2 sought to adduce

evidence to prove the grounds enumerated under Section 34(2)

(a) of the Act. The learned counsel submitted that the grounds

for setting aside the award are specific and therefore,

necessarily respondent Nos.1 and 2 will have to plead and

prove the grounds mentioned in Section 34(2) of the Act and

prove the same and the High Court rightly allowed the writ

petitions giving an opportunity to respondent Nos.1 and 2 to

adduce evidence in the proceedings under Section 34 of the

Act.

9. The proceedings under Section 34 of the Act are

summary in nature. The scope of enquiry in the proceedings

under Section 34 of the Act is restricted to a consideration

whether any of the grounds mentioned in Section 34(2) or

Section 13(5) or Section 16(6) are made out to set aside the

award. The grounds for setting aside the award are specific. It

is imperative for expeditious disposal of cases that the

arbitration cases under Section 34 of the Act should be decided

only with reference to the pleadings and the evidence placed

before the arbitral tribunal and the grounds specified under

Section 34(2) of the Act.

10. The learned counsel for respondent Nos.1 and 2

submitted that in view of Rule 4(b) of the High Court of

Karnataka Arbitration (Proceedings before the Courts) Rules,

2001, (Karnataka High Court Arbitration Rules) all the

proceedings of the Civil Procedure Code, 1908 shall apply to

such proceedings and therefore, the High Court rightly allowed

the writ petitions and permitted respondent Nos.1 and 2 to file

their own affidavits and also the affidavits of the witnesses.

Rule 4(b) of the Karnataka High Court Arbitration Rules

provides that all the proceedings of the Civil Procedure Code

shall apply to such proceeding/application filed under Sections

14 or 34 of the Act insofar as they could be made applicable.

Rule 4(b) of Karnataka High Court Arbitration Rules, in our

view, are only procedural. In Fiza Developers, the Supreme

Court noticed Rule 4(b) of Karnataka High Court Arbitration

Rules and made it clear that there is no wholesale or automatic

import of all the provisions of Civil Procedure Code into the

proceedings under Section 34 of the Act as that will defeat the

very purpose and object of the Arbitration Act, 1996.

11. In Fiza Developers, the question which arose for

consideration by the court was whether issues as contemplated

under Order XIV Rule 1 of Civil Procedure Code should be

framed in the application under Section 34 of the Act. The

court held that framing of issues as contemplated under Order

XIV Rule 1 CPC is not required in an application under Section

34 of the Act which proceeding is summary in nature. In paras

(14), (17), (21) and (24) of Fiza Developers, it was held as

under:-

“14. In a summary proceeding, the respondent is given an

opportunity to file his objections or written statement. Thereafter,

the court will permit the parties to file affidavits in proof of their

respective stands, and if necessary permit cross-examination by

the other side, before hearing arguments. Framing of issues in

such proceedings is not necessary. We hasten to add that when

it is said issues are not necessary, it does not mean that

evidence is not necessary.

……..

17. The scheme and provisions of the Act disclose two significant

aspects relating to courts vis-à-vis arbitration. The first is that

there should be minimal interference by courts in matters relating

to arbitration. Second is the sense of urgency shown with

reference to arbitration matters brought to court, requiring

promptness in disposal.

……….

21. We may therefore examine the question for consideration by

bearing three factors in mind. The first is that the Act is a special

enactment and Section 34 provides for a special remedy. The

second is that an arbitration award can be set aside only upon

one of the grounds mentioned in sub-section (2) of Section 34

exists. The third is that proceedings under Section 34 requires to

be dealt with expeditiously.

……..

24. In other words, an application under Section 34 of the Act is

a single issue proceeding, where the very fact that the

application has been instituted under that particular provision

declares the issue involved. Any further exercise to frame issues

will only delay the proceedings. It is thus clear that issues need

not be framed in applications under Section 34 of the Act.”

12. Though this Court held that the applications under

Section 34 of the Act are summary proceedings, an opportunity

to the aggrieved party has to be afforded to prove existence of

any of the grounds under Section 34(2) of the Act. This court

thus permitted the applicant thereon to file affidavits of his

witnesses in proof thereof. In para (31) of Fiza Developers,

this Court held as under:-

31. Applications under Section 34 of the Act are summary

proceedings with provision for objections by the respondentdefendant,

followed by an opportunity to the applicant to “prove”

the existence of any ground under Section 34(2). The applicant

is permitted to file affidavits of his witnesses in proof. A

corresponding opportunity is given to the respondent-defendant

to place his evidence by affidavit. Where the case so warrants,

the court permits cross-examination of the persons swearing to

the affidavit. Thereafter, the court hears arguments and/or

receives written submissions and decides the matter. This is of

course the routine procedure. The court may vary the said

procedure, depending upon the facts of any particular case or

the local rules. What is however clear is that framing of issues as

contemplated under Rule 1 of Order 14 of the Code is not an

integral part of the process of a proceedings under Section 34 of

the Act.”

13. After referring to the judgment in Fiza Developers, in the

impugned judgment, the High Court held that respondent Nos.1

and 2 are to be afforded an opportunity to file their and their

witnesses’ affidavits in proof of their case to prove the grounds

set out in Section 34(2)(a) of the Act.

14. After the decision in Fiza Developers, Section 34 was

amended by Act 3 of 2016 by which sub-sections (5) and (6) of

Section 34 were added to the Principal Act w.e.f. 23.10.2015.

Sub-sections (5) and (6) to Section 34 of the Act read as

under:-

“34. Application for setting aside arbitral award.—

(1)-(4) ……..

(5) An application under this section shall be filed by a party only

after issuing a prior notice to the other party and such application

shall be accompanied by an affidavit by the applicant endorsing

compliance with the said requirement.

(6) An application under this section shall be disposed of

expeditiously, and in any event, within a period of one year from

the date on which the notice referred to in sub-section (5) is

served upon the other party.”

15. The judgment in Fiza Developers was considered by

Justice B.N. Srikrishna Committee which reviewed the

institutionalisation of the arbitration mechanism and pointed out

that opportunity to furnish proof in proceedings under Section

34 of the Arbitration Act has led to inconsistent practices. The

said Committee reported as under:-

“5. Amendment to Section 34(2)(a) of the ACA: Sub-section (2)

(a) of Section 34 of the ACA provides for the setting aside of

arbitral awards by the court in certain circumstances. The party

applying for setting aside the arbitral award has to furnish proof

to the court. This requirement to furnish proof has led to

inconsistent practices in some High Courts, where they have

insisted on Section 34 proceedings being conducted in the

manner as a regular civil suit. This is despite the Supreme Court

ruling in Fiza Developers & Inter-Trade (P) Ltd. v. AMCI (India)

(P) Ltd. (2009) 17 SCC 796 that proceedings under Section 34

should not be conducted in the same manner as civil suits, with

framing of issues under Rule 1 of Order 14 of the CPC.

In light of this, the Committee is of the view that a suitable

amendment may be made to Section 34(2)(a) to ensure that

proceedings under Section 34 are conducted expeditiously.

Recommendation: An amendment may be made to Section 34(2)

(a) of the Arbitration and Conciliation Act, 1996, substituting the

words ‘furnishes proof that’ with the words ‘establishes on the

basis of the Arbitral Tribunal’s record that’.”

[Report of Justice B.N. Srikrishna Committee quoted in

Emkay Global Financial Services Ltd. v. Girdhar Sondhi

(2018) 9 SCC 49]

16. Based upon Justice B.N. Srikrishna Committee’s report,