Point of Law : Power to modify, vary or remit the award does not exist under Section 34 of the Act.

JUDGMENT :

1. Heard Ms. Aarushi Khare, learned counsel for the applicants and perused the record.

2. This application has been filed praying for appointment of an independent Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996, Act. The opposite parties are as follows :-

(I) Chief Engineer, Bhopal Zone, Sultania Infantry Lines, Bhopal-462001,

(II) Engineer-in-Chief, Branch Army Head Quarter, New Delhi,

(III) Commander Works Engineer, Military Engineer Services, Jhansi, and,

(IV) Garrison Engineer, Military Engineer Services, Jhansi-284001, U.P.

3. The applicants and the opposite parties entered into a contract under a Contract Agreement No.CEJZ/JHA-05. Since a dispute arose between the parties, under clause 70 of the general conditions of the aforesaid agreement which provides for arbitration, the competent authority-opposite party no.2 appointed one Mr. Baljit Singh as the sole Arbitrator under the terms of the arbitration agreement, who made the final award on 25.02.2010.

4. The aforesaid award was challenged before the District Judge, Jhansi by means of an application under Section 34 of the Act (Arbitration Misc. Case No.20/2010) for setting aside the award. By an order dated 16.09.2019, the Court allowed the application, set aside the award dated 25.02.2010, and remitted the matter back to the Arbitrator to reconsider all the issues raised before the Court in light of the terms of the contract as well as the issue regarding extension of period for completion of work of IIIrd Phase and to pass the award afresh.

5. However, thereafter, the Arbitrator Mr. Baljit Singh resigned and withdrew from the aforesaid arbitration proceedings citing his ineligibility to continue as Arbitrator as he had retired, and only a serving officer could be an Arbitrator as per the agreement.

6. It is contended by the learned counsel for the applicants that despite repeated reminders to the opposite parties, no substitute Arbitrator is being appointed by them and, therefore, this application has been filed.

7. When the matter was listed on 23.09.2021, the learned counsel for the applicants sought adjournment to address the Court on the issue of maintainability of the application. Learned counsel has thus made her submissions on the issue of maintainability.

8. A query was made by the Court to the learned counsel for the applicants that whether the Court exercising jurisdiction under Section 34 of the Act, had power to remand the matter to the Arbitrator after setting aside the arbitral award dated 25.02.2010, and if not, whether the present application would be maintainable. The learned counsel for the applicants referred to Sections 14 and 15 of the Act, and contended that since the matter has been remanded, and since the Arbitrator withdrew from his office, his mandate stood terminated, and, therefore, under Section 15(2) of the Act, a substitute Arbitrator is required to be appointed. It is, therefore, contended that under the facts of the case, since the award has been set aside, an Arbitrator would anyway be required to be appointed and therefore, the present application would be maintainable. Learned counsel has referred to the judgment of the Supreme Court in McDermott International Inc. v. Burn Standard Company Ltd. and others, (2006) 11 SCC 181.

9. On perusal of the order passed by the court below on 16.09.2019 on the application filed by the applicants under Section 34 of the Act, it is evident that the award passed by the Arbitrator on 25.02.2010 was set aside and the matter was remitted back to the Arbitrator to reconsider all the issues raised before the court in light of the terms of the contract as well as the issue regarding extension of period for completion of work of Phase-III and to pass the award afresh. The relevant extract of the order of the Court below is quoted :-

“12. A perusal of Impugned award reveals that the Arbitrator has rejected the claim of applicant/firm for want of extension of period for completion