The court clarified that applications under Section 34 of the Arbitration Act are summary proceedings, not subject to appeal rules, and additional evidence may only be introduced under specific circumstances.

JUDGMENT :

Rohit Ranjan Agarwal, J.

1. The land of petitioner was acquired for road widening by National Highways Authority of India (NHAI) invoking Section 3A of National Highways Act, 1956 (hereinafter called as "the Act of 1956") in the year 2017. The competent authority/Additional District Magistrate made an award on 29.05.2018. An objection was filed by petitioner against the said award which was rejected on 15.12.2021 and the award dated 29.05.2018 was confirmed.

2. Petitioner filed application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter called as "the Act of 1996") for setting aside the arbitral award dated 29.05.2018 and 15.12.2021. During the pendency of the said application, petitioner moved an application for filing of certain documents which were kept in some box and came to his knowledge on 20.10.2024, which led to filing of an application on 22.10.2024. The court below by order impugned dated 09.12.2024 considering the said application to be under Order XLI Rule 27 CPC has rejected the same. Hence, the present writ petition.

3. Learned counsel for the petitioner submits that court below had wrongly rejected the application holding it to be an application under Order XLI Rule 27 CPC as it was not filed during appellate proceedings. Further, as the award was made on 29.05.2018, the unamended provision of Section 34(2)(a) would apply and the party making the application may file documents in support of his claim. He has relied upon the decision of Apex Court rendered in case of Emkay Global Financial Services Limited vs. Girdhar Sondhi, AIR 2018 SC 3894 ; MMTC Ltd. vs. Vedanta Ltd., AIR 2019 SC 1168 and Alpine Housing Development Corporation Pvt. Ltd. vs. Ashok S. Dhariwal and others, AIR 2023 SC 558

4. Learned counsel appearing for NHAI submitted that application moved for additional evidence was not maintainable and application has to be decided on the basis of the record which was present before the Arbitrator. Reliance has been placed upon the decision of Apex Court in case of Alpine Housing Development Corporation Pvt. Ltd. (supra)

5. I have heard respective counsel for the parties and perused the material on record.

6. The short controversy for consideration before this Court is as to whether the court below had rightly proceeded to reject the application filed by petitioner holding it to be an application under Order XLI Rule 27 CPC or not, and also as to whether the provisions of unamended Act of Section 34(2)(a) would be applicable or not in the instant dispute.

7. Section 34 of the Act of 1996 provides for recourse against arbitral award. By the amending Act 33 of 2019, the words "furnishes proof that" were deleted from sub-section (2)(a) of Section 34 and the words "establishes on the basis of the record of Arbitral Tribunal that" were added w.e.f. 30.08.2019.

8. Prior to amendment of 2019, the party making an application for setting aside the arbitral award could have maintained an application for bringing on record documents relevant to determination of issues arising under Section 34 by way of affidavit, but post amendment the arbitral award can only be set aside by party making the application on the basis of records of Arbitral Tribunal and no fresh material can be brought on record. The Hon'ble Apex Court in Emkay Global Financial Services Limited (supra) while dealing with pre amendment stage held as under:-

"21. It will thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act, and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a summary proceeding under Section 34, this object will be defeated. It is also on the cards that if Bill No. 100 of 2018 is passed, then evidence at the stage of a Section 34 application will be dispensed with altogether. Given the current state of the law, we are of the view that t