Prior to the amendment of Section 34(2)(a) of the Arbitration Act, an applicant could introduce additional evidence beyond the record before the arbitrator when seeking to set aside an arbitral award.

ORDER :

(Suraj Govindaraj, J.)

1. Petitioner is before this Court seeking for the following reliefs:-

i. "Issue a Writ of Certiorari or any other Writ setting aside the Order dated 08.06.2020 passed on IA No.III in Com.A.S.No.238/2018 by the LXXXIII Add. City Civil and Sessions Judge, Bengaluru [CCH-84] vide Annexure - A;

ii. Allow the application [IA No.III] dated 04.06.2019 fled under Rule 4(b) of the High Court of Karnataka Arbitration (Proceedings before the Courts) Rules, 2001 read with Section 151 of the Code of Civil Procedure, 1908 vide Annexure - C;

iii. Pass such other order/s or grant such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of this case."

2. The respondent had filed a claim petition before the Arbitrator, in which, an award was passed against the petitioner. Challenging the same, the petitioner had filed proceedings under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act' for short), which came to be numbered as Com.A.S.No.238/2018.

3. When the matter was posted for arguments, the petitioner had filed an application under Rule 4(b) of the High Court of Karnataka Arbitration (Proceedings before the Courts) Rules, 2001 read with Section 151 of CPC seeking permission of the Court to lead additional evidence by marking a document being letter dated 14.08.2015 addressed by the Senior Audit Officer, Commercial Audit Wing to the Managing Director of the petitioner.

4. The said application came to be rejected by the impugned order on the ground that the said application had been filed to drag on the proceedings and there is no valid reason which has been assigned for allowing the said application to lead further evidence by way of production of documents. Challenging the same, the petitioner is before this Court seeking for the aforesaid reliefs.

5. Sri. Nishanth A.V., learned counsel for the petitioner would submit that the present proceeding under Section 34 of the Act is filed on 29.11.2018. The same would be governed by unamended Section 34(2)(a) of the Act. The amended Section 34(2)(a) of the Act would not be applicable to the present case and as such, the unamended Section 34(2)(a) of the Act would be applicable and in this regard, he submits that any party making an application under Section 34 of the Act, if furnishes proof of any of the events enumerated under Section 34(2)(a) of the Act, the Court seized of proceeding under Section 34 would take note of the said aspects and pass necessary orders.

6. In this matter, he submits that what is proposed to be produced is the report of the Accountant General Office which directed the petitioner to withhold a sum of Rs.43,20,000/- and it is in furtherance thereof that the withholding has been made by the petitioner, the petitioner not having any option but to withhold.

7. The petitioner, having produced the ledger statement marked as Ex.R26, where a journal entry had been made as regards the reason for withholding the petitioner was under the impression that the same would be sufficient proof for the order of withholding made by the Auditor General. However, the learned Arbitrator has negated the contention of the petitioner on the ground that no independent document has been produced regarding such direction of withholding.

8. He submits that firstly, the learned Arbitrator ought to have considered the entry made as proof thereof, secondly since the same has not been produced, the petitioner has now sought to produce the same under the Section 34 proceedings by filing the aforesaid application, which ought to have been considered by the Section 34 Court favourably.

9. In this regard, he relies upon the decision of Co-ordinate Bench of this Court in Ashok S. Dhariwal and another vs. M/s Alpine Housing Development Corporation Private Limited and others dated 01.09.2021 in W.P.No.50799/2019, more particularly, para 13 thereof which has been reproduced hereunder for easy reference:-

"13. The deci