ARBITRAL AWARD

The arbitral award or arbitration award refers to an arbitration hearing decision made by an
arbitration tribunal. An arbitral award is equal to a court judgment. An arbitral award may be
non-monetary in nature where the claims of the entire claimant fail and there is no need for
any party to pay any money.

An arbitration award may be given for payment of a sum of money, judgment of any matter
to be decided in the arbitration proceedings, injunctive relief, substantive fulfilment of a
contract and rectification, setting aside or cancelling an act or other document.

The arbitral award shall be defined as any arbitral tribunal’s judgment on the nature of the
dispute referred to it and shall include a temporary, interlocutory or partial arbitral award.
The arbitral tribunal may grant an interim arbitral award on any matter for which it will make
a final arbitral award at any time during the arbitral proceedings. The interim award may be
applied in the same way as a final award of arbitration. Unless otherwise decided by the
parties, a party may ask the arbitral tribunal to make an additional arbitral award in respect of
the claims raised in the arbitral proceedings but omitted from the arbitral award within 30
days of receipt of the arbitral award.

An arbitral award can be categorised into:

1. Domestic Award: Domestic award are those awards which are the outcomes of
domestic arbitration. It is confined to the territory of India, the parties should have a
nexus or birth of Indian origin, the territory essentially comes into play for domestic
arbitration purposes. The award given by an arbitral tribunal in India or an award,
even if it is given by a foreign state for a dispute in which both parties are of Indian
origin and the nationality is also regulated by Indian law, also falls within the scope of
domestic arbitration.

Domestic awards are governed by Part I of the Arbitration and Conciliation Act, 1996. A
domestic award is an award granted pursuant to Section 2 to 43 of the Act.

2. Foreign Award: Foreign Award is the outcome of Foreign Arbitration. If the parties
choose a foreign arbitration institution or agree to an ad hoc arbitration overseas, the
award granted after such proceedings shall be referred to as foreign award.
Part II of the Arbitration and Conciliation Act of 1996 deals with International Arbitration or
Foreign Arbitration. Section 44 of the Act defines with Foreign Award.

In, Serajuddin v. Michael Golodetz The Calcutta High Court established the necessary
conditions for an arbitration to be referred to as ‘ foreign arbitration ‘ or the essential
elements of a foreign arbitration where the award could also be referred to as a foreign
arbitration award. The important points laid were as follow:

1. “Arbitration should have been held in a foreign country.”

2. ”By a foreign arbitrator.”

3. “Arbitration by applying foreign laws.”

4. “One of the parties consists of foreign nationals.”

Essential Elements of Arbitral Award

• Should be in written form.

• Signed by the Arbitrator.

• Shall contain the reason for the passing of Award.

• Date and place at which the arbitration took place.

Enforcement of Arbitral Award

The regulation and execution of decrees in India is regulated by the Civil Procedure Code,
1908 (“CPC”), while the arbitral award procedure in India is governed mainly by the
Arbitration & Conciliation Act, 1996 (“Act”) and the CPC.

For the same way as an Indian court decree, domestic and international awards are enforced.
However, there is a difference depending on the seat of arbitration. Seated arbitral award
(“domestic award”) would be governed by Part I of the Act, enforcement of foreign — seated
awards (“international award”) would be governed by Part II of the Act.
• Enforcement of Domestic Arbitral Award: Until filing for compliance and execution,
an award recipient would have to wait 90 days after receiving the award. The award
may be questioned during the transitional period in compliance with Section 34 of the
Act. When the above time expires, if a court considers the award enforceable at the
execution point, the authenticity of the arbitral award cannot be questioned any
further. Before the recent Law on Arbitration and Conciliation (Amendment),2015
(Amendment Act), a petition to set aside an award could equate to a stay in the award
execution proceedings. Nevertheless, a party opposing a award would have to transfer
a separate application to demand a stay on an award execution by virtue of the
Amendment Act.
 • Enforcement of Foreign Arbitral Award: India is a signatory to Geneva Convention
on the Execution of Foreign Arbitral Awards, 1927 (“Geneva Convention”) and
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958
(“New York Convention”).

If a party receives a binding award from a state signing the New York Convention or the
Geneva Convention and the award is made in a territory recognized by India as a convention
country, the award would then be enforceable in India. In India, implementing a foreign
award is a two-stage procedure begun by filing a request for execution. Initially, a judge will
decide if the award met with the law’s criteria.

Once an award has been considered enforceable, it can be applied as a court order.

At this point, however, parties should be aware of the various obstacles that may occur, such
as frivolous complaints from the opposing party, and provisions such as bringing the award’s
original / authenticated copy and the underlying agreement before the court.
Conditions for enforcement of Arbitral Awards (domestic and foreign)

A party may use the following grounds to contest an award. If the other party shows this,
such an award would be made unenforceable.

1. According to the statute, the parties to the settlement were under any disability.

2. The agreement in question did not comply with the law to which the parties are
subject or with the law of the country in which the award was made.

3. The party did not receive a proper notice of appointment from the arbitrator or the
arbitral proceedings or was otherwise unable to bring his case before the arbitral
tribunal.
 4. The reward deals with a distinction that does not fall within the terms of the
agreement.

5. Award contains decisions on matters beyond the scope of being referred arbitration.

6. The arbitral proceedings did not comply with the agreement.

7. The composition of the arbitral body or the arbitral proceedings does not comply with
the law of the country in which the arbitration took place.

8. The award (precisely a foreign award) was not made binding on the parties or was set
aside or revoked by the competent authority of the state in which the award was made
or by the statute of which it was made.

9. Under Indian law, the subject matter of the dispute cannot be resolved by arbitration.
Enforcing the award would be contradictory to India’s public policy.

Limitation Period for Enforcement of Arbitral Award

In the case of domestic arbitral awards, the 1963 limitation law applies to arbitrations
because, according to section 21, the arbitral proceedings in respect of a specific dispute start
on the date on which the respondent receives a petition to refer the dispute to arbitration.
Arbitral awards are deemed to be a decree. The Arbitration Act does not place any restriction
on the execution of a foreign award, and the usual limitation period (12 years) is likely to
apply.

Different high courts have given different definitions of the limitation period within which a
party can impose an award in the case of foreign awards. The Bombay High Court observed a
foreign award in ‘Noy Vallesina v Jindal Drugs Limited’ not to be a judgment, rendering it
non-binding on parties unless it was reported as enforceable by a competent court. In the
‘Compania Naviera ‘ Sodnoc ‘ v. Bharat Refineries Ltd.,’ on the other hand, the Madras High
Court referred to international awards as considered decrees.

In M/s. Fuerst Day Lawson Ltd v. Jindal Exports Ltd, the Supreme Court ruled that there
could be different stages in a single proceeding. A court can agree on the enforceability of the
award in the first proceeding. Once the enforceability has been determined, more successful
steps can be taken to implement the same.

In the case that a foreign award is implemented, the party cannot appeal against any court
decision denying the award’s objections. If the court holds the award to be non-enforceable,
an appeal can be made. Therefore, a ruling that upholds the award cannot be appealed twice.
Nevertheless, according to Article 136 of the Indian Constitution, the party can look forward
to a direct appeal to the Supreme Court of India. These forms of appeals are pursued only in
the case that the court thinks there is a matter of fundamental importance or public interest.

The party seeking enforcement of a decree of a court of reciprocating country to file a

execution proceedings in India. International rulings from a reciprocating territory’s superior
courts can be specifically applied by filing an execution petition under section 44A of the
Civil Procedure Code. After which section 51 must come into play and order XXI of CPC.

In the event that a non-reciprocating nation gives the foreign judgment, a fresh case will have
to be brought before a court of competent jurisdiction in India, where the foreign judgment
will be considered as proof. The time limit for filing a lawsuit to enforce these international
judgments is three years from the date of delivery of the judgment.

Challenges in Execution of Foreign Arbitral Award in India

Obtaining an award in your favour from an international arbitral tribunal is a bit of a half-won
fight as it still needs to be enforceable in India. There have been various cases in which the
party failed to enforce it in competent Indian courts, despite receiving a favourable award in
an international arbitral tribunal. Therefore, in order to obtain an arbitral award, there is no
way out but to enter into litigation from which all parties at first refrained. It takes time for an
order already issued by an international arbitral tribunal to become effective. Nonetheless,
this path cannot be avoided as it offers more of a formal procedure and guarantees that proper
diligence is applied on behalf of the courts to implement the award.

Local government pressure, especially local parties with more political power, may attempt to
cancel the award or the full impact of the award, which could frustrate the award given by the
international arbitration seat.

Part II of the 1996 Indian Arbitration & Conciliation Act (“the Act”) deals with the
enforcement of foreign awards, while Chapter I (Sections 44-52) deals explicitly with the
awards relating to the Convention. According to Section 44(b), a “international award” must
be given in one of those territories as the Government of India may, upon being satisfied with
the existence of reciprocal provisions, by notification in its Official Gazette, declare it to be
the territory in which the Convention is applicable. There is, however, a reason why it is
necessary to remove this provision to obtain gazetted notice in order to bring India’s
arbitration system into accordance with convention norms. Gazetting provisions create
unnecessary confusion about the compliance of international awards given in countries that
are contracting states to the Convention but have not yet been informed in the Gazette.

Sai Babu vs. Clariya Steels Pvt. Ltd.

In this case (Sai Babu vs. Clariya Steels Pvt. Ltd.), the sole arbitrator terminated proceedings
under Section 32(2) (c) i.e. on the ground that the continuation of the proceedings become
unnecessary or impossible. Later, he allowed an application by one of the parties seeking
recall of the order terminating the proceedings. The Karnataka High Court dismissed the
challenged against this 'recall' by the Arbitrator. In appeal, the Supreme Court bench of
Justice Rohinton Fali Nariman and Justice Vineet Saran referred to judgment in SREI
Infrastructure Finance Limited v. Tuff Drilling Private Limited. The bench observed: "It is
clear, therefore, that a distinction was made by this Court between the mandate terminating
under section 32 and proceedings coming to an end under section 25. This Court has clearly
held that no recall application would, therefore, lie in cases covered by section 32(3)." In
SREI Infrastructure Finance Limited, the issue involved was whether arbitral tribunal which
has terminated the proceeding under Section 25(a) due to non filing of claim by claimant has
jurisdiction to consider the application for recall of the order terminating the proceedings on
sufficient cause being shown by the claimant? It was held that the Tribunal had jurisdiction to
recall an order terminating the proceedings under Section 25(a). The following observation in
SREI Infrastructure Finance Limited, has been reproduced by the bench in present case to
hold that the termination under Section 32 cannot be recalled. "Section 32 contains a heading
"Termination of Proceedings". Sub-section (1) provides that the arbitral proceedings shall be
terminated by the final arbitral award or by an order of the Arbitral Tribunal under sub-
section (2). Sub-section (2) enumerates the circumstances when the Arbitral Tribunal shall
issue an order for the termination of the arbitral proceedings. The situation as contemplated
under Sections 32(2)(a) and 32(2)(b) are not attracted in the facts of this case. Whether
termination of proceedings in the present case can be treated to be covered by Section
32(2)(c) is the question to be considered. Clause (c) contemplates two grounds for
termination i.e. (i) the Arbitral Tribunal finds that the continuation of the proceedings has for
any other reason become unnecessary, or (ii) impossible. The eventuality as contemplated
under Section 32 shall arise only when the claim is not terminated under Section 25(a) and
proceeds further. The words "unnecessary" or "impossible" as used in clause (c) of Section
32(2), cannot be said to be covering a situation where proceedings are terminated in default
of the claimant. The words "unnecessary" or "impossible" has been used in different contexts
than to one of default as contemplated under Section 25(a). Subsection (3) of Section 32
further provides that the mandate of the Arbitral Tribunal shall terminate with the termination
of the arbitral proceedings subject to Section 33 and sub-section (4) of Section 34. Section 33
is the power of the Arbitral Tribunal to correct any computation errors, any clerical or
typographical errors or any other errors of a similar nature or to give an interpretation of a
specific point or part of the award. Section 34(4) reserves the power of the court to adjourn
the proceedings in order to give the Arbitral Tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the opinion of the Arbitral Tribunal will
eliminate the grounds for setting aside the arbitral award. On the termination of proceedings
under Sections 32(2) and 33(1), Section 33(3) further contemplates termination of the
mandate of the Arbitral Tribunal, whereas the aforesaid words are missing in Section 25.
When the legislature has used the phrase "the mandate of the Arbitral Tribunal shall
terminate" in Section 32(3), non-use of such phrase in Section 25(a) has to be treated with a
purpose and object. The purpose and object can only be that if the claimant shows sufficient
cause, the proceedings can be recommenced."

Surender Kumar Singhal & Ors. v. Arun Kumar Bhalothia

Arbitration- Tribunals Should Decide Objections On Its Jurisdiction As Preliminary Issue;

High Courts Have Limited Power To Interfere In Proceedings :Delhi HC

The Delhi High Court recently made significant observations with regard to the power of an

Arbitral Tribunal to rule on its own jurisdiction and the manner of deciding the same.

A Single Bench of Justice Prathiba M. Singh also addressed the issue of jurisdiction of

High Courts over arbitral tribunals and the scope of such interference.

Law governing applications under Section 16 of the Arbitration & Conciliation Act, 1996

and manner of consideration by arbitral tribunals.

With respect to the first aspect, the High Court has held that following the principle
of kompetenze-kompetenze, an Arbitral Tribunal has the power to rule on its own
jurisdiction.

However, depending on each case, the Tribunal ought to decide Section 16 applications—

raising objection as to its jurisdiction— as soon as possible or with a sense of urgency as a

preliminary ground.

The order stated,

"Section 16 of the Arbitration and Conciliation Act, 1996 deals with the competence of a

Tribunal. Following the principle of kompetenze-kompetenze, an Arbitral Tribunal has the

power to rule on its own jurisdiction. However, Section 16(5) requires that the Tribunal

ought to decide the plea.…The objection has to be decided at the earliest. However, there
cannot be a hard and fast

rule. Depending on the facts and circumstances of each case, the Tribunal ought to decide

the objection under Section 16 of the Act as soon as possible, as a preliminary ground."

Reliance was placed on McDermott International Inc. v. Burn Standard Co. Ltd. & Ors.,

(2006) 11 SCC 181, where the Supreme Court held that under Section 16 of the Act, the party

questioning the jurisdiction of the arbitrator has an obligation to raise the said question before

the arbitrator. Further, the jurisdictional question is required to be determined as a

preliminary ground.

Similarly, in Raj International v. Tripura Jute Mills Ltd 2008 SCC Online Gau 333, the

Gauhati High Court had observed that without giving decision on the question of jurisdiction,

the arbitrator has no right to proceed for making an arbitral award.

In her order, Justice Singh observed that the following factors can be borne in mind when

objections are raised under Section 16 of the Act:

• If the issue of jurisdiction can be decided on the basis of admitted documents on

record then the Tribunal ought to proceed to hear the matter/ objections under Section
16 of the Act at the inception itself;

• If the Tribunal is of the opinion that the objections under Section 16 of the Act cannot

be decided at the inception and would require further enquiry into the matter, the

Tribunal could consider framing a preliminary issue and deciding the same as soon as

possible.

• If the Tribunal is of the opinion that objections under Section 16 would require

evidence to be led then the Tribunal could direct limited evidence to be led on the said

issue and adjudicate the same.

• If the Tribunal is of the opinion that detailed evidence needs to be led both written and

oral, then after the evidence is concluded, the objections under Section 16 would have

to be adjudicated first before proceeding to passing of the award.

Whether arbitral tribunals are tribunals over which jurisdiction under Art. 226/227 is

exercisable by High Courts and what is the scope of interference?

The Single Bench observed that the law on this issue is well settled that Arbitral tribunals are

a species of tribunals over which the High Court exercises writ jurisdiction. Challenge to an

order of an arbitral tribunal can be raised by way of a writ petition.

It noted that the Supreme Court has, in a plethora of judgments, held that arbitral tribunals are

private tribunals unlike those tribunals set up under the statute or specialized tribunals under

the Constitution of India. Thus, a Petition under Article 227 challenging orders of an Arbitral

Tribunal would be maintainable.

Scope of interference in arbitral proceedings under Art. 227 of the Constitution

The Bench observed that while there is no doubt that the arbitral tribunal is a tribunal over

which writ jurisdiction can be exercised, the said interference by a writ court is limited in

nature.It referred to the case of Deep Industries Ltd. v. ONGC and Ors,, whereby the
Supreme Court
had categorically held that the jurisdiction of the writ court under Article 227 would not be

barred. However, the High Court would be extremely circumspect in interfering and the

jurisdiction would be exercised only where the Arbitrator patently lacks inherent jurisdiction.

The Supreme Court had said,

"there is no doubt whatsoever that if petitions were to be filed Under Articles 226/227 of the

Constitution against orders passed in appeals Under Section 37, the entire arbitral process

would be derailed and would not come to fruition for many years. At the same time, we

cannot forget that Article 227 is a constitutional provision which remains untouched by the

non-obstante Clause of Section 5 of the Act. In these circumstances, what is important to note

is that though petitions can be filed Under Article 227 against judgments allowing or

dismissing first appeals Under Section 37 of the Act, yet the High Court would be extremely

circumspect in interfering with the same."

In this backdrop, Justice Singh noted that the following principles are well settled, in respect

of the scope of interference under Article 226/227 in challenges to orders by an arbitral

tribunal including orders passed under Section 16 of the Act:

• An arbitral tribunal is a tribunal against which a petition under Article 226/227 would

be maintainable;

• The non-obstante clause in section 5 of the Act does not apply in respect of exercise

of powers under Article 227 which is a Constitutional provision;

• For interference under Article 226/227, there have to be `exceptional circumstances';

• Though interference is permissible, unless and until the order is so perverse that it is

patently lacking in inherent jurisdiction, the writ court would not interfere;

• Interference is permissible only if the order is completely perverse i.e., that the

perversity must stare in the face;

• High Courts ought to discourage litigation which necessarily interfere with the arbitral

process;

• Excessive judicial interference in the arbitral process is not encouraged;

• It is prudent not to exercise jurisdiction under Article 226/227;

• The power should be exercised in `exceptional rarity' or if there is `bad faith' which is

shown;

• Efficiency of the arbitral process ought not to be allowed to diminish and hence

interdicting the arbitral process should be completely avoided

M/S SIMPLEX INFRASTRUCTURE LTD VS UNION OF INDIA

Administrative difficulties would not be a valid reason to condone a delay above and beyond
the statutory prescribed period under Section 34 of the 1996 Act.’The Supreme Court held
that administrative difficulties would not be a valid reason to condone a delay above and
beyond the statutory prescribed period under Section 34 of the Arbitration and Conciliation
Act, 1996 to file an application to set aside arbitration award. In this case, Union of India and
Simplex Infrastructure Ltd., were parties to an agreement for the construction of 821 units of
permanent shelters in the tsunami-hit Andaman and Nicobar Islands. Following dispute
between the parties, arbitration was conducted as per agreement and award was passed in
Company’s favour against Union of India directing the latter to pay a sum of ₹9,96,98,355/-
with simple interest @ 10% per annum. In January, 2015, Union of India initially filed an
application to set aside the award before the District Judge, Port Blair for setting aside the
arbitral award. On 12 February 2016, the District Judge dismissed the respondent’s
application under Section 34 of the 1996 Act for want of jurisdiction. On 28 March 2016, the
Union of India filed an application under Section 34 before the High Court of Calcutta for
challenging the arbitral award, along with an application for condonation of a delay of 514
days. The UoI justified the delay, invoking Section 14 of the Limitation Act, contending that
there was a bona fide mistake in filing the application before the wrong forum and also the
delay due to which necessary formalities were not complied with within the prescribed time.
The Calcutta High court condoned the delay. In the appeal filed before the Apex Court,
Senior Advocate Aryama Sundaram, appearing for the company, contended that even if the
benefit of Section 14 of the Limitation Act is extended to the respondent in filing the
application under Section 34 of the 1996 Act, there would still be a delay of 131 days which
could not be condoned in view of the specific statutory limitation prescribed under Section
34(3) of the 1996 Act. With respect to the delay of 131 days, the Union of India submitted
that there were no willful latches on its part and the delay was caused due to inevitable
administrative difficulties of obtaining directions from higher officials. Referring to relevant
provisions of both the statutes, the bench comprising Justice Dhananjaya Y Chandrachud and
Justice Vineet Saran said that use of the words “but not thereafter” in the proviso to Section
34(3) of the Arbitration and Conciliation Act, makes it clear that the extension cannot be
beyond thirty days. “Even if the benefit of Section 14 of the Limitation Act is given to the
respondent, there will still be a delay of 131 days in filing the application. That is beyond the
strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the
1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to
breach a clear statutory mandate.”, the bench said. Allowing the appeal, the bench said: “One
of the reasons stated by the respondent for delay in filing an application under Section 34 of
the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was
a time-consuming process for obtaining permission from the circle office at Chennai.
Administrative difficulties would not be a valid reason to condone a delay above and beyond
the statutory prescribed period under Section 34 of the 1996 Act.”
M/S EMKAY GLOBAL FINANCIALSERVICES LTD. VS GIRDHAR SONDHI
The Supreme Court has held 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, the bench of Justice RF Nariman and Justice Indu
Malhotra clarified in Emkay Global Financial Services Ltd vs. Girdhar Sondhi. Background
In the arbitration agreement between a stock exchange broker and his client, there was an
exclusive jurisdiction clause vesting such jurisdiction only in the courts in Mumbai. The
arbitration was conducted and the client’s claim got rejected. Section 34 petition, which was
filed in Delhi district court, was rejected citing lack of jurisdiction. The high court, in the
appeal, referred back the parties to the district judge to first frame an issue and then decide on
evidence, including the opportunity to cross-examine witnesses who give depositions.
Against this high court judgment, the broker approached the apex court, contending that
when Section 34(2)(a) speaks of a party making an application who “furnishes proof” of one
of the grounds in the sub-section, such proof should only be by way of affidavit of facts not
already contained in the record of arbitration proceedings. On the jurisdiction aspect, the
bench, referring to decision in Indus Mobile Distribution Pvt Ltd v. Datawind Innovations
Pvt. Ltd. and Ors , observed: “It is clear that once courts in Mumbai have exclusive
jurisdiction thanks to the agreement dated 03.07.2008, read with the National Stock
Exchange bye-laws, it is clear that it is the Mumbai courts and the Mumbai courts alone,
before which a Section 34 application can be filed. The arbitration that was conducted at
Delhi was only at a convenient venue earmarked by the National Stock Exchange, which is
evident on a reading of bye-law 4(a)(iv) read with (xiv) contained in Chapter XI.” With
regard to the question of remand, the bench noted an early Delhi High Court decision in
Sandeep Kumar v. Dr. Ashok Hans, which specifically held that there is no requirement
under the provisions of Section 34 for parties to lead evidence. It also observed that in Fiza
Developers & Inter-Trade Pvt Ltd v. AMCI (India) Pvt Ltd and Anr, it has been 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. The
court also took note of proposed amendment to be brought to the Act and observed: “It will
thus be seen that speedy resolution of arbitral disputes has been the reason for enacting the
1996 Act, and continues to be the reason for adding amendments to the said Act to strengthen
the aforesaid object. Quite obviously, if issues are to be framed and oral evidence taken in a
summary proceeding under Section 34, this object will be defeated. It is also on the cards that
if Bill No.100 of 2018 is passed, then evidence at the stage of a Section 34 application will be
dispensed with altogether.”The bench also overruled the decision of Punjab and Haryana
High Court in M/s Punjab State Industrial Development Corporation v. Sunil K Kansal, that
had held that, if some questions of fact or mixed questions of law and/or facts are to be
decided, the court while permitting the parties to furnish affidavits in evidence, can summon
the witness for cross-examination, if desired by the other party. The bench, setting aside the
high court order, said: “We may hasten to add that if the procedure followed by the Punjab
and Haryana High Court judgment (supra) is to be adhered to, the time limit of one year
would only be observed in most cases in the breach. We therefore overrule the said decision.
We are constrained to observe that Fiza Developers (supra) was a step in the right direction as
its ultimate ratio is that issues need not be struck at the stage of hearing a Section 34
application, which is a summary procedure. However, this judgment must now be read in the
light of the amendment made in Section 34(5) and 34(6). So read, 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-examinationn 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.