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2023 Supreme(Cal) 1278
IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, PRASENJIT BISWAS, JJ.
The State of West Bengal & Ors. – Appellants
Versus
Soharab Ali Sardar – Respondent
FMA 835 of 2019 with CAN 1-4 of 2021
Decided On : 28-04-2023
For the Appellants : Mr. Ashim Kumar Ganguly, Mr. Pritam Chakraborty, Mr. Mukul Biswas.
For the Respondent: Mr. Samik Bagchi.
IMPORTANT POINT
An award can only be set aside on the grounds specified in section 30 of the Arbitration Act, 1940, and an arbitrator need not give a reasoned award.
Headnote:
Arbitration Act - Setting Aside Arbitral Award - Sections 30 and 33 of the Arbitration Act, 1940 - Section 85 of the New Act
Fact of the Case:
The appellant filed an application under sections 30 and 33 of the Arbitration Act, 1940 praying for setting aside the arbitral award dated 21.01.2015 before the learned Civil Judge (Sr. Division) 1st Court at Baruipore but it was rejected by the court by passing the impugned order dated 20.09.2018.
Finding of the Court:
The court found that the award passed by the arbitrator did not fall within the grounds specified in section 30 of the Arbitration Act, 1940 for setting aside an award. The court affirmed the impugned order dated 20.09.2018 and dismissed the appeal and all connected applications.
Issues: The issues revolved around the applicability of sections 30 and 33 of the Arbitration Act, 1940, and the interpretation of section 85 of the New Act in relation to arbitral proceedings.
Ratio Decidendi: The court held that an award can only be set aside on the grounds specified in section 30 of the Arbitration Act, 1940, and that an arbitrator need not give a reasoned award. The court also interpreted section 85 of the New Act in relation to arbitral proceedings.
Final Decision: The appeal and all connected applications were dismissed, and the impugned order dated 20.09.2018 was affirmed. No order as to costs was given.
JUDGMENT :
Prasenjit Biswas, J.
The appellants have preferred this appeal being aggrieved by and dissatisfied with the order dated 20.09.2018 passed in connection with an application filed under sections 30 and 33 of the Arbitration Act, 1940 by the learned Civil Judge (Senior Division), 1st Court at Baruipur.
2. Mr. Ashim Kumar Ganguly, learned Senior Counsel appearing for the Appellants is very much vocal on the point that the impugned arbitral award is bereft of any reasons and as such it cannot stand under the provisions of law. He further submits that court below erred in law and fact in rejecting the application filed under sections 30 and 33 of the Arbitration Act, 1940 filed by these appellants as the parties went into arbitration with clear understanding and belief that the proceedings was conducted under the 1996 Act.
3. Any award made by an arbitrator can be set aside only if one or the other term specified in sections 30 and 33 of the Arbitration Act, 1940 is attracted. It is submitted that the award passed by the arbitrator is bereft of reasons and as such the award passed by the arbitrator should be nullified. Section 30 of the Arbitration Act, 1940 provides for setting aside an award which is restrictive in its operation. Unless one or the other condition contained in section 30 is satisfied, an award cannot be set aside. Even in a case where the award contains reasons the interference therewith would still be not available within the jurisdiction of the court unless, of course, the reasons are totally perverse or the judgment is based on a wrong proposition of law. Once it is found that the view of the arbitrator is a plausible one, the court will refrain itself from interfering in it.
4. We would refer to section 85 of the New Act, which reads as under-
“85.Repeal and savings.
(1) the Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2) Notwithstanding such repeal.
(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;
(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.”
5. It appears from section 85(2) (a) that (1) the provisions of the old Act shall apply in relation to arbitral proceedings which commenced on or before the new Act came into force, unless otherwise agreed by the parties (2) it also provides that the New Act shall apply in relation to arbitral proceedings which commenced on or after the New Act came into force.
6. In this case pursuant an agreement the appellant issued work order in favour of the respondent and as per agreement the tender work was ought to be completed within 90 days i.e. from 26.12.1988 to 25.03.1989 but the respondent failed to complete the said contractual work within the said period. Thereafter show cause notices were issued to the respondent but as the reply to that show cause notice was not convincing the executive engineer issued a letter to the respondent for imposition of penal action as per clause 2 of the contractual agreement. Ultimately the dispute travelled to the court of the learned and Civil Judge (Sr. Division) at Baruipore by filing a suit being T.S. No.211/1994 by the respondent under section 20(4) of the Arbitration Act, 1940 for referring the dispute to the arbitrator but the court rejected the prayer of the respondent for appointment of Arbitrator. Against that order appeal was preferred being no. FA/2912004 before this court and direction was given by this court upon the appellant to appoint an arbitrator to adjudicate the
