Court affirmed that under S.34 of the Arbitration and Conciliation Act, oral evidence is not necessary and should not be allowed in challenging an arbitral award.

1. This application is directed against the Order No. 48 dated March 31, 2010 passed by the learned Judge, City Civil Court, 2nd Bench, Calcutta in Misc. Case No. 216 of 2004 thereby dismissing an application for adducing evidence at the hearing of an application under S.34 of the Arbitration and Conciliation Act, 1996 .

2. Parties entered into several agreements dated November 1, 2001 relating to grant of lease of various goods, articles, equipment to be used by the opposite party no. 1 at 49B, Chittaranjan Avenue, Kolkata - 700012. Various disputes arose between the parties and even the opposite parties did not deliver the possession of the office space after expiry of the period of licence. Nor did the opposite party pay the money as per just demands of the petitioners. Amongst others there was a clause for arbitration. The petitioners received a letter from the arbitrator, namely, opposite party no. 2 stating that he had been appointed as arbitrator by the opposite party no. 1 but the petitioners did not receive any notice of the appointment of the arbitrator and the terms of agreement relating to appointment as agreed on November 1, 2001 had not been adhered to. Accordingly, the petitioners filed a Misc. No. 2374 of 2003 before the learned Chief Judge, City Civil Court, Calcutta under S.12, S.13 and S.15 of the Arbitration and Conciliation Act, 1996 seeking removal or cancellation of the appointment of the opposite party no. 2 as arbitrator. The said misc. case was fixed on November 27, 2003 for hearing but no formal order of stay was granted. In the mean time, on November 25, 2003, the opposite party no. 2 passed an award in favour of the opposite party no. 1 without giving any opportunity to the petitioners.

3. Under the circumstances, the Misc. Case No. 2374 of 2003 having become infructuous, the petitioners filed a separate application under S.34 of the Arbitration and Conciliation Act, 1996 being the Misc. Case No. 216 of 2004 for setting aside the arbitral award and in that misc. case, the petitioners filed an application to adduce oral evidence. That prayer was rejected by the impugned order. Being aggrieved, this application has been filed.

4. Now, the question is whether the impugned order should be sustained.

5. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the facts as narrated above are not in dispute. Now, the question whether the petitioners are entitled to adduce oral evidence in an application under S.34 of the 1996 Act.

6. In disposing of an application under S.34, the concerned Court is to consider whether the said application should be allowed or not, in terms of the provisions of the Sub-Sections (2) and (3) of S.34 of the 1996 Act. Therefore, an arbitral award may be set aside by the concerned Court only on the limited grounds as stated in Sub-Sections (2) and (3) of S.34 of the said Act and not on other grounds. The petitioners have contended that the concerned Court did not consider whether the petitioners were given proper opportunity by considering the records and the finding of the arbitrator or not. The petitioners are required to prove that the provisions of Sub-Sections (2) and (3) of S.34 of the Act have not been complied with in disposing of the proceeding by the learned Arbitrator.

7. Mr. Swapan Kumar Mullick appearing on behalf of the petitioners submits that the opposite party no. 1 and the learned Arbitrator, that is, the opposite party no. 2 acted collusively and for that reason, the arbitral proceeding had been disposed of by passing an award on November 25, 2003 on knowing full