2002 Supreme(Bom) 1322
IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
Harinarayan G. Bajaj .... Petitioner.
Versus
Sharedeal Financial Consultants Pvt. Ltd. another.... Respondents.
Arbitration Petition No. 433 of 2002, decided on 13-12-2002.
Advocates appeared :
S.U. Kamdar i/b. Ravi Goenka, for petitioner.
Ajay Khandar, for respondent No. 1.
Headnote:Arbitration and Conciliation Act, 1996 - Sections 2(1), 27, 31 and 34(2) - Recording of evidence denied - Denial is an award or an interim award - Held - In a decision the disputed matter should he decided finally - Any thing referred vide claim must fulfil requirements of Section 31 - It is mandatory before signing award - Any other award shall not be a final award - Impugned order rejecting application filed under Section 27 is not interim one and a final award - It can well be challenged. - On behalf of the respondents in that case it was contended that to fall under the expression "Award" and for that matter a decision to become an Award, must be a determination of a particular issue or claim in the arbitration. Answering the issue the Court held that a decision which does not decide the claim would not amount to an award and observed as under : -
"The ultimate Arbitral Award could be assailed on the grounds indicated in sub-section (2) of Section 34 and an erroneous decision on the question of venue, which ultimately affected the procedure that has been followed in the arbitral proceedings, could come within the sweep of Section 34(2)......"
It is, therefore, clear that every order or decision is not an Award. An order or decision in the course of proceedings which are continuing and in respect of which no remedy is provided under the Act could normally be challenged while challenging the award under Section 34, provided the challenge was available under Section 34(2) of the Act. In the instant case the order rejecting the application under Section 27 is a decision and/or order. It is not definitely an interim Award. It would, therefore, be open to the petitioner to challenge if they wish to.
2. The challenge principally is that the said decision/order is an Award. If an Award, it can be challenged under section 34 of the Act of 1996. It will, therefore, have to be decided whether the order/decision dated 29th October, 2002 is an Award which expression includes an interim Award. If it is an Award, petition under section 34 would be maintainable. If not, the Court cannot exercise jurisdiction under section 34 and the parties will be left to challenge the order/decision when the Award is finally made and if in law the challenge falls under one of the grounds set out in section 34(2). It is also made clear that the correctness or otherwise of the said order/decision is not being gone into as the Court presently is only considering the issue whether the said order/decision, is an Award.
2-A. We may advert to certain provisions of the Arbitration Conciliation Act, 1996 to find out whether the order/decision of the Arbitral Tribunal rejecting an application under section 27 is an Award/interim Award as set out under section 2(c) of the Act of 1996. Section 2(c) sets out that an Arbitral Award includes an interim Award. What is an Award by itself is not defined. Section 31 of the Act of 1996 sets out the requirements of an Award including its form. It provides that an Arbitral Award shall be made in writing and shall be signed by the members of the Arbitral Tribunal. It further requires that in any arbitral proceedings with more than one arbitrator, the signature of the majority of all the members of the Arbitral Tribunal shall be sufficient so long as the reason for any omitted signature is stated. The next requirement is that the Award shall state the reasons upon which it is based except for the exceptions set out therein. It must also state the date and the place of arbitration. The subsequent requirements are procedural in nature of communicating the Award to the parties. We are really not concerned with that part. An Award considering section 2(c) of the Act of 1996, therefore, includes an interim Award, and as such will also have to satisfy the same requirements of section 31 to be treated as an Award. Section 31(6) confers jurisdiction on the Arbitral Tribunal at any time during the arbitral proceedings, to make an interim Arbitral Award on any matter with respect to which it may make a final Arbitral Award. Section 37 provi