An order under Section 32(2)(c) of the Arbitration Act does not constitute an arbitral award and is not subject to challenge under Section 34.

Order :

MANISH PITALE, J.

1. The respondent No.1 (original claimant) has filed this application for deciding a preliminary issue regarding maintainability of arbitration petition filed under Sections 14, 15 and 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Arbitration Act”), with a further prayer for accepting the preliminary objection and dismissing the arbitration petition as not maintainable.

2. The arbitration petition challenges an order dated 07^th May 2024, passed by the learned Arbitrator dismissing an application filed by the petitioners (original respondents before the Arbitrator) under Section 32 of the Arbitration Act. According to the petitioners herein, in the light of certain developments that took place during the pendency of the arbitration proceedings, it had become impossible to continue the said proceedings as per Section 32 (2)(c) of the Arbitration Act. The learned Arbitrator passed a detailed order on 07^th May 2024, disagreeing with the petitioners and consequently dismissed the said application.

3. Mr. Navroz Seervai, learned senior counsel appearing for the applicant (respondent No.1) submitted that Section 32 of the Arbitration Act specifies the scenarios in which arbitration proceedings terminate and the said provision makes a clear distinction between an “Award” and an “Order”. By emphasizing upon the contents of sub-Sections (1) and (2) of Section 32 of the Arbitration Act, the aforementioned distinction was highlighted and it was submitted that in the present case, the petitioners sought termination of the arbitration proceedings before the learned Arbitrator on the assertion that in the light of certain circumstances it had become impossible to continue the Arbitral proceedings. It was submitted that the form of the application filed by the petitioners before the learned Arbitrator and its contents, both were relatable to Section 32 (2)(c) of the Arbitration Act and a perusal of the order dated 07^th May 2024, passed by the learned Arbitrator would show that power under that very provision was exercised while dismissing the application of the petitioners. By referring to the contents of the impugned order, it was submitted that, only the question of alleged impossibility of continuation of the arbitral proceedings, was considered and hence, the impugned order was nothing but an order refusing to terminate the arbitral proceedings as sought by the petitioners under Section 32 (2)(c) of the Arbitration Act.

4. On this basis, it was submitted that the impugned order cannot be termed as an “Award” and hence the petition filed by the petitioners under Section 34 of the Arbitration Act, is not maintainable. It was submitted that the question decided in the impugned order had nothing to do with the lis between the parties and the disputes that are subject matter of the pending arbitral proceedings and therefore, it can neither be termed as an “Interim Award” nor a “Partial Final Award”, as sought to be projected on behalf of the petitioners.

5. In this context, learned senior counsel appearing for the applicant submitted that the claim of the petitioners that if the preliminary objection was accepted, they would be left remediless, is a submission without any merit. In this context specific reliance was placed on judgment of the Delhi High Court in the case of Future Coupons Private Limited & Ors. Vs. Amazon.Com & Anr., [2022 SCC OnLine Bom 3890]. It was clarified in the said judgment that in such situations, the aggrieved party can certainly challenge the order if the arbitral award goes against it and an occasion arises for filing a petition under Section 34 of the Arbitration Act to ch