Section 34(2)(a) of The Arbitration Act

Posted on by Rudrajyoti Nath Ray

“In an early Delhi High Court Judgment, Sandeep Kumar v. Dr. Ashok Hans, (2004) 3 Arb LR 306 Learned Single Judge of Delhi High Court specifically held, there is no requirement under the provisions of Section 34 for parties to lead evidence. The record of the Arbitrator was held to be sufficient in order to furnish proof of whether the grounds under Section 34 had been made out.

Given the current state of the law, we are of the view, the Delhi High Court Judgment correctly reflects the position in law as to furnishing proof under Section 34(2)(a). So does Calcutta High Court Judgment in WEB Techniques and Net Solutions Pvt. Ltd. v. M/s. Gati Ltd., 2012 SCC Online Cal 4271 referring to Fiza Developers, (2009) 17 SCC 796.

We clarify the legal position by stating, an application for setting aside an Arbitral Award will not ordinarily require anything beyond the record that was before the Arbitrator. However, if there are matters not contained in such record, and are relevant to the determination of issues arising under Section 34(2)(a), they may be brought to the notice of Court by way of affidavits filed by both parties. Cross-examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both parties.”

– Hon’ble Justice R.F. Nariman, M/s. Emkay Global Financial Services Ltd. v. Girdhar Sondhi, [Civil Appeal No. 8367 of 2018].

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Learned Senior Counsel, Krishnan Venugopal submitted, High Court is in ‘serious error’ to permit affidavits/additional evidence in proceedings under Section 34.

High Court has not committed any ‘error’. In case of Arbitration Proceedings commenced and concluded prior to amendment of Section 34(2)(a), pre-amendment Section 34(2)(a) shall be applicable. The view which we are taking is because by amendment of Section 34(2)(a) there is a substantial change.

– Hon’ble Justice M.R. Shah, Alpine Housing Development Corporation Pvt. Ltd. v. Ashok S. Dhariwal, [Civil Appeal No. 73 of 2023].

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