Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2014 (10) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (10) TMI 550 - SC - Indian LawsValidity of Arbitral award - High court set aside order holding that Arbitrator had not recorded his “findings” as required under Clause 70 of the General Conditions of Contract - Held that:- Clause 70 makes a clear distinction between findings on each individual item of dispute on the one hand and the sum, if any, awarded in regard to the same on the other. That the Arbitrator had made his award in regard to each item of dispute raised by the appellant before it, is evident from a reading of the award. The question is whether the Arbitrator had recorded his findings on each such items. The High Court has, as noted above, answered that question in the negative; and set aside the award holding that the expression ‘findings’ must include the reasons for the ultimate conclusion arrived at by the Arbitrator. That view was assailed by learned counsel for the appellant who contended that the expression ‘findings’ should not imply the process of reasoning adopted by the Arbitrator for recording his conclusions. A finding howsoever cryptic would, according to the submission of the learned counsel for the appellant, satisfy the requirement of Clause 70 for otherwise the Clause would have been differently worded so as to make it mandatory for the Arbitrator to make what is called a speaking award giving reasons for the conclusions arrived at by him. Court declared that Government and their instrumentalities should - as a matter of policy and public interest - if not as a compulsion of law, ensure that whenever they enter into an agreement for resolution of disputes by way of private arbitrations, the requirement of speaking awards is expressly stipulated and ensured. Any laxity in that behalf might lend itself and perhaps justify the legitimate criticism that government failed to provide against possible prejudice to public interest. The predominant use of the expression is in relation to determination by a Judge, Jury, Administrative Agency, Arbitrator or a Referee. The determination is described either as a finding, decision or conclusion; upon disputed facts. It is also described as a determination of a fact supported by evidence on the record. It is interchangeably used as a conclusion or decision a term used by the legal profession and by Courts. In Build India Construction System (2002 (5) TMI 842 - SUPREME COURT) this Court noted in no uncertain terms that the validity of the award had not been specifically questioned on the ground of its having been given in breach of any obligation of the Arbitrator to give reasons as spelled out by the arbitration clause. The judgment of the learned Single Judge did not show, observed this Court, that such a plea was urged before him. The objection petition filed to challenge the award was also found by this Court to be vague and general hence insufficient to give rise to an effective challenge to the award on the ground of it being non-speaking. The plea regarding the Award being non-speaking was raised for the first time before the Division bench in appeal. This Court in that backdrop held that the Division Bench fell in error in entertaining and upholding such a plea at such a late stage. Consequent upon the orders passed by the High Court the Arbitrator shall conclude the proceedings in terms of the provisions of the Arbitration Act of 1940 expeditiously. We further make it clear that in case the Arbitrator already nominated is for any reason unable to take up the assignment the respondents shall within six weeks from today appoint a substitute Arbitrator who shall then enter upon the reference and conclude the proceedings as early as possible. - Decided against appellant.
|