IMPORTANT POINT
The court established that the discretion to remit an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996, should only be exercised when there are curable defects in the award, and not when there are fundamental flaws that render the award unsustainable.

JUDGMENT

D.Dash, J.

The Appellant, by filing this Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short 'the A&C Act' 1996), has called in question the order dated 18.10.2019 passed by the learned District Judge, Cuttack in ARBP No.87 of 2013. The Respondent as the Petitioner had filed the above numbered application under section-34 of the A & C Act, 1996 for setting aside the award dated 01.02.2013 passed by the Arbitral Tribunal constituted as per the Contract Agreement No.32/CE/C/HQ/BBS/SER/2000 dated 05.05.2000 executed between the Respondent (Petitioner therein) and the Appellant (Opposite Party therein). The learned District Judge has passed the following orders:-

"That the petition u/s 34 of the Arbitration & Conciliation Act, 1996 by the Petitioner is allowed on consent against the Opp. Party, however, in the peculiar facts and circumstance without cost. The impugned arbitral Award dated 01.02.2013 is hereby set aside. The matter is remitted back to the Arbitral Tribunal for fresh adjudication at an early date preferably within a period of three months from the date of receiving back the matter keeping in mind the observation made in this order and also the observation made in the order dated 20.04.2012 in ARBP No.205/2008 of this Court.

A copy of this order along with the LCR be returned back to the Railway Authority, i.e., the East Coast Railway from whom the same was received, at the earliest."

2. Brief facts leading to the instant Appeal are as follows:-

The Appellant had taken up the project work relating to execution of the earthwork, minor bridges and other allied work in Sector-V between Km. 481.694 to Km. 484.160 in connection with Rahama-Paradeep Patch doubling of Cuttack-Paradeep section in Khurda Road Division of South Eastern Railway having inviting open/limited tenders for the purpose, the Appellant after negotiation. Pursuant to the acceptance of the tender, the agreement came into being which contained the arbitration clause. The period of completion of work was fifteen (15) months from the date of acceptance of the letter, i.e., 02.03.2001.

According to the Respondent, he was given tounderstand that the site where he was to work was free from all obstructions. It is also said that it was the obligation of both sides to discharge their obligations without causing any delay for completion of the work within the agreed time period. The Respondent's case is that he was always sincering to complete the work within the time frame by mobilizing sufficient number of man and machineries and collecting the required materials for the purpose. However despite all these above being in readiness the work could not be completed in time due to various other intervening factors, mainly due to devastation on account of Super Cyclone. After the Super Cyclone, there was abnormal rise in the diesel rate as also other materials. The Respondent despite all these started the work with all promptness. But he was not provided with work site free from all obstructions as agreed for which he was compelled to make alternative arrangements by constructing an approach road crossing the railway lines after writing to the Appellant on 07.10.2000 with the knowledge and supervision of the Appellant. Major part of the work was completed by end of June, 2000.

However, rest work could not progress due to monsoon followed by heavy rain coming to intervene. So, as per the decision taken in the Progress Review Meeting, the time period to complete the rest of work was extended by further period. Be that as it may to the misfortune of the Appellant, the execution of the rest of work was seriously hampered due to the miscreants creating mischievous activity. The Appellant in this matter totally remained silent and unmoved on being requested by the Respondent to intervene. The Appellant, on the other hand, on 06.11.2000 wrote a letter as to the inaction of the Respondent in completing the work since July, 2000 and then threa