Section 34 of arbitration act
siddharth Srivastav
(Querist) 18 May 2013
This query is : Resolved
sir,
i filed an application as per sec 34 of arbitration act for setting aside the arbitral award...but the other party made the application for the arbitral award to be awarded to them.....
my contention is that sec 34 itself acts as a stay order. can i get some case laws on this matter and your valuable view points?
ajay sethi
(Expert) 18 May 2013
court has powers to stay the award pending hearing and final disposal of your application for setting aside award .
(1)The Court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that:--
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
2) The Court may set aside the award:--
(i) (a) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties,
(b) failing such agreement, the composition of the arbitral tribunal was not in accordance with Part-I of the Act.
(ii) if the arbitral procedure was not in accordance with:--
(a) the agreement of the parties, or
(b) failing such agreement, the arbitral procedure was not in accordance with Part-I of the Act.
However, exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part-I of the Act from which parties cannot derogate.
(c) If the award passed by the arbitral tribunal is in contravention of provisions of the Act or any other substantive law governing the parties or is against the terms of the contract.
(3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to:--
(a) fundamental policy of Indian law;
(b) the interest of India; or
(c) justice or morality, or
(d) if it is patently illegal.
siddharth Srivastav
(Querist) 18 May 2013
what about if the other party has objection at the same time and are demanding the arbitral award when i am filing the application???
ajay sethi
(Expert) 18 May 2013
court will consider your application and pass a ppropriate orders . you must have made application for setting aside award within the stipulated period . only if court does not find any merit in your submissions will it allow the other party application
siddharth Srivastav
(Querist) 18 May 2013
thank you sir....but can u please provide me with some case laws regarding this???
R.K Nanda
(Expert) 18 May 2013
search indiankanoon.com.
Dr V. Nageswara Rao
(Expert) 18 May 2013
1. Pl remember that the 1996 A&C Act was intended to obviate the pre-existing malpractice of getting an award stayed for some reason or the other.
2. S. 34 clearly says that the award can be set aside "only if".
3. Mere filing of an application under S. 34 does not operate as a stay of the award. The Act was intended to exactly stop that practice as the losing party was trying to scuttle the arbitral process by filing frivolous petitions.
4. You have not mentioned on what ground of S. 34 you relied on.
5. When the award was already given, where is the question of the other party filing an application "for the arbitral award to be awarded to them....."?
6 The Courts have been very reluctant to entertain frivolous apllications under S. 34.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 18 May 2013
Yes courts discourage the belated action after award is passed.
You had earlier simple options to stall the whole process of appointment and proceedings of the arbitrator.
Even now the citations will be for advocate to go through and make use of them which are MANY. BUT You may take distorted view and than will hamper the efficiency of your advocate.
Still you want to venture at this stage yoe can take legal steps for -
1) Objecting the process followed for appointment of arbitrator.
2) No proper exchange of information for this purpose.
3) Arbitrator was biased BUT far that you have to quote specific examples.
4) Find fault with the reference given for arbitration.
2) And than the arbitrator vitiated the whole proceedings by not following the basic concept of natural justice.
THERE ARE MANY MANY SUCH THINGS WHICH CAN BE DONE EVEN AT THIS STAGE BUT THROUGH A MATURED ADVOCATE WHO CAN PUT THE ARGUMENTS PROPERLY AND CONVINCINGLY BEFORE THE COURT.
IT IS NOT A JOB OF NOVICE AND SURELY NOT FOR IN PERSON LITIGANTS.
Raj Kumar Makkad
(Expert) 19 May 2013
You have adequetly been advised by Ld. experts.
siddharth Srivastav
(Querist) 20 May 2013
the other party wants some part of the award to be deposited in the court..when i have filed an application under sec 34 of setting aside arbitral award.what should i do??? can you please provide me with some commentaries or case laws on this issue.please!!!
