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

In an early Delhi High Court Judgment, Sandeep Kumar v. Dr. Ashok Hans, (2004) 3 Arb LR 306, Learned Single Judge of the Delhi High Court specifically held that 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.

The Calcutta High Court in WEB Techniques and Net Solutions Pvt. Ltd. v. M/s. Gati Ltd. and Anr., 2012 SCC Online Cal 4271 after referring to Fiza Developers, (2009) 17 SCC 796 held that oral evidence is not required under a Section 34 application when the record before the Arbitrator would show whether the petitioners had received notice relating to his appointment.

Given the current state of the law, we are of the view that the Delhi High Court Judgment correctly reflects the position in law as to furnishing proof under Section 34(2)(a). So does the Calcutta High Court Judgment.

We clarify the legal position by stating that 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 the 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].