A party can seek arbitration anew after an arbitral award is set aside, and a notice under Section 21 is not necessary unless the arbitration clause is freshly invoked.

CAV ORDER

1. The Petitioner is before this Court seeking for the following reliefs:

a) “Appoint a Sole Arbitrator to adjudicate the disputes between the petitioner and the Respondent in terms of Article 11.2 of the concession Agreement dated 11.08.2004 produced as Annexure-A;

b) And/or pass such other orders as this Hon’ble Court may deem fit in the interest of justice and equity.”

2. The Petitioner and Respondent No.1 had entered into a concession agreement on 11.08.2004 for the development, operation and maintenance of an integrated Municipal Solid Waste (MSW) processing facility, which was amended by a supplementary agreement dated 24.03.2009, under which various obligations were to be performed by both parties.

3. Alleging that Respondent No.1 had wrongfully terminated the concession agreement on 28.05.2016, the Petitioner had invoked the Arbitration Clause. The invocation not having been accepted by Respondent No.1, the Petitioner had approached this Court by filing a petition in CMP No.198/2016. Though the Arbitration Clause envisaged the appointment of three Arbitrators, this Court, at the request of both the parties, had appointed a sole Arbitrator to decide the disputes.

4. The sole Arbitrator passed an award on 03.05.2018, partly allowing the claim of the Petitioner and directing the payment of a sum of Rs.4,00,00,000/- as against the claim of Rs.1,08,44,03,582/-. The said award was challenged by the Petitioner in A.S.No.159/2018 and by Respondent No.1 in A.S.No.163/2018. The III Additional City Civil and Sessions Judge, Bengaluru, allowed the petition filed by Respondent No.1 and set aside the arbitral award vide a common judgement dated 12.08.2020.

5. The said common judgement was challenged in MFA Nos.5111/2020 and 5232/2020. This Court allowed the said appeals and set aside the order passed under Section 34 and remitted the arbitration suits to the Commercial Court, Bengaluru, for reconsideration.

6. The Commercial Court reconsidered the petitions filed by the Petitioner and Respondent No.1 under Section 34 of the Arbitration and Conciliation Act , 1996 (hereinafter referred to as ‘the A&C Act’ for short). Com.A.S.No.159/2018 filed by the Petitioner was allowed vide judgement dated 28.02.2023 and the arbitral award dated 03.05.2018 was set aside. Com.A.S.No.163/2018 filed by Respondent No.1 was dismissed. The Commercial Court has observed as under:

“52. Section 34 of Arbitration and Conciliation Act 1996 Indicates that the power of the Courts is limited to setting aside the arbitral awards, strictly in terms of the specific grounds urged before the Court. The Act contains no provision that allows the Courts to either modify the arbitral awards or grant additional/alternative reliefs that the arbitral tribunal did not grant. The Act provides only two mechanisms for making changes in the arbitral award passed by the arbitral tribunal. The first being provided under Section 33, whereby the arbitral tribunal is empowered to make clerical and technical corrections in the arbitral award that it deems fit after receiving the request for the same from the parties to the proceedings. The second mechanism is under (4), whereby the Courts can adjourn the proceedings for setting aside arbitral awards and provide an opportunity to the arbitral tribunal to take appropriate actions to eliminate the grounds for setting aside such arbitral awards. Thus, even during the pendency of the proceedings under , the defects in the arbitral award can only be cured by the arbitral tribunal. I