Whether an award passed under S. 34(4) of the A&C Act is a fresh award for the purpose of S. 34 of the Act? Del HC answers

Delhi High Court: Vibhu Bakhru, J., allowed an amendment application seeking amendment of a petition filed under Section 34 of the Arbitration and Conciliation Act.

The Court observed that there is no remedy available against the order passed by the Arbitral Tribunal under Section 34 of the A&C Act as the same is not a fresh award, which can be impeached by filing a separate petition under Section 34 of the A&C Act.

An instant application was filed seeking to add additional grounds for challenging the arbitral award (the impugned award). The said impugned award was rendered by an Arbitral Tribunal, wherein two members concurred and passed the impugned award, and third member entered a dissenting opinion.

Later, the petitioner filed an application under Section 33 of the A&C Act seeking rectification and clarification, which was dismissed on the ground that it was barred by limitation.

The Respondent i.e. ONGC opposed the Amendment Application on the ground that:

(a) the Petitioner seeks to urge fresh grounds to challenge the Impugned Award which is impermissible under Section 34 read with Section 36 of the Arbitration Act as, the time for filing the application to set aside the award has since elapsed, and

(b) Allowing of the Amendment Application to add further grounds would in effect, tantamount to allowing the Petitioner to assail the Impugned Award at a belated stage on the ground, which it had forfeited, by not impeaching the impugned award on such grounds itself.

Analysis and Decision

On examining the new grounds sought to be urged by the petitioner, it was apparent that the petitioner sought to urge further grounds that arose because the impugned award was now required to be read in light with the order passed by the Arbitral Tribunal under Section 34(4) of the A&C Act.

Bench expressed that there is no remedy available to the petitioner against the order of the Arbitral Tribunal under Section 34(4) of the A&C Act as the same is not a fresh award, which can be impeached by filing a separate petition under Section 34 of the A&C Act.

High Court stated that the impugned award remains unaltered. The only difference being that it is now to be read with the order passed by the Arbitral Tribunal under Section 34(4) of the A&C Act. In this view, the petitioner cannot be precluded from raising such additional grounds.

In view of the above, an application was allowed. [UEM India (P) Ltd. v. ONGC Ltd., OMP (COMM) 393 of 2018, decided on 15-3-2022]


Advocates before the Court:

For the Petitioner: Mr. Gaurav Pachnanda, Senior Advocate with Ms. Iti Agarwal, Mr. Praful Shukla and Ms. Avni Sharma, Advs.

For the Respondent: Mr. Abhisek Puri and Ms. Surbhi Gupta, Advs.

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