In an application under Section 34 of the Arbitration and Conciliation Act, the court does not ordinarily require anything beyond the record that was before the arbitrator, and cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary.

JUDGMENT :

S.K. MISHRA, J.

1. Heard learned counsel for the appellant.

2. In this Appeal Against Order, the appellant being the respondent, in Arbitration Case No. 249 of 2019, Center of Excellence in Disaster Mitigation and Management vs. M/s S.K. Dynamics Pvt. Ltd. Roorkee, has assailed the order dated 05.10.2021, passed by the learned Additional District Judge (Commercial), Dehradun, in a proceeding initiated by the respondent before us under Section 34 of the Arbitration and Conciliation Act, 1996, thereby accepting the paper nos. 27 C-2 and 28 C-2, i.e. supplementary affidavit as a rejoinder affidavit along with certain other additional documents/facts.

3. The learned counsel for the appellant submitted that the provisions of the Arbitration and Conciliation Act, 1996, does not envisages filing of the additional statements, documents/facts at the stage of Section 34 proceeding, and such a recourse can be taken only in exceptional circumstances. The learned counsel relies upon the reported case of M/s Canara Nidhi Limited vs. M. Shashikala and Others, (2019) SCC Online SC 1244, wherein the Hon’ble Supreme Court has examined this aspect of the case, and has held as under:

14. After a decision in Fiza Developers, Section 34 was amended by Act 3 of 2016 by which sub-sections (5) and (6) of Section 34 were added to the Principal Act w.e.f. 23.10.2015. Subsections (5) and (6) to Section 34 of the Act read as under:

“34. Application for setting aside arbitral award:

(1)-(4)..............

(5) An applications under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.”

15. The judgment in Fiza Developers was considered by Justice B.N. Srikrishna Committee which reviewed the institutionalization of the arbitration mechanism and pointed out that opportunity to furnish proof in proceedings under Section 34 of the Arbitration Act has led to inconsistent practices. The said Committee reported as under:

“5. Amendment to Section 34(2)(a) of the ACA: Sub-section (2)(a) of Section 34 of the ACA provides for the setting aside of arbitral awards by the court in certain circumstances. The party applying for setting aside the arbitral award has to furnish proof to the court. This requirement to furnish proof has led to inconsistent practices in some High Courts, where they have insisted on Section 34 proceedings being conducted in the manner as a regular civil suit. This is despite the Supreme Court ruling in Fiza Developers and Inter-Trade (P) Ltd. vs. AMCI (India) (P) Ltd. (2009) 17 SCC 796 that proceedings under Section 34 should not be conducted in the same manner as civil suits, with framing of issues under Rule 1 of Order 14 of the CPC.

In light of this, the Committee is of the view that a suitable amendment may be made to Section 34(2)(a) to ensure that proceedings under Section 34 are conducted expeditiously.

Recommendation: An amendment may be made to Section 34(2)(a) of the Arbitration and Conciliation Act, 1996, substituting the words ‘furnishes proof that’ with the words establishes on the basis of the Arbitral Tribunal’s record that.”

[Report of Justice B.N. Srikrishna Committee quoted in Emkay Global Financial Services Ltd. vs. Girdhar Sondhi, (2018) 9 SCC 49]

16. Based upon Justice B.N. Srikrishna Committee’s report, Section 34 of the Principal Act has been amended by Arbitration and Conciliation (Amendment) Act, 2019, as under:

“7. Amendment of Section 34 –In Section 34 of the principal Act, in sub-section (2), in clause (a), for the words “furnishes proof that”, the words “establishes on the basis of the record of the Arbitral Tribunal that” shall be substituted.”

17. Afte