TMI Blog2015 (5) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... ] , it was observed by the Supreme Court that in exercise of powers under Section 11(6) of the Arbitration Act, the Court can deviate from the procedure agreed by the parties to provide for effective resolution of dispute through arbitration. Thus in a deserving case when a fresh decision of the arbitrator is necessary when the previous decision was quashed by Court, the law permits appointment of new arbitrator by departing from the agreed arrangement. The want of judicial approach was the primary reason for the perverse decision by the Arbitration Tribunal, which was constituted only by retired/serving railway officers. In such circumstances, it is felt that a departure from the agreed process will improve the quality of adjudication and the decision making process in the de-novo process, necessitated by the Court quashing of the previous arbitral award. Mr. Justice H.N. Sarma, a Former Judge of this Court is nominated as the Arbitrator for resolution of the contractual dispute - case disposed off. - Hrishikesh Roy, J. For the Appellant : M. Jain and S.D. Deka For the Respondent: A.K. Sarkar, SC JUDGMENT 1. Heard Ms. M. Jain, the learned counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Judge, the same arbitration panel can be asked to reconsider the matter within a time bound period to eliminate the grounds for setting aside the arbitral award. Alternately, Mr. Sarkar argues that the Arbitration Tribunal may be directed to make an additional arbitral award under sub-section (5) of Section 33 of the Arbitration Act. 6. Before proceeding any further with this matter, it may be appropriate to note the vital distinction in the Arbitration Act, 1940 (hereinafter referred to as the Old Act ) and the current Arbitration Act enacted in the year 1996. For this we may usefully refer to the opinion of Justice V. Ramasubramanian of the Madras High Court in M/s. M.M.T.C. Vs. Vicnivass Agency anr. reported in (2009)1 MLJ 199: ................................. 22. To summarise, there are at least six distinguishing features between Section 16(1) of the 1940 Act and Section 34(4) of the 1996 Act, which are as follows:- (a) While Section 16(1) of the 1940 Act, empowered the Court to remit the matter for reconsideration to the Arbitrator , Section 34(4) of the 1996 Act, empowers the court just to adjourn the proceedings to enable the arbitral tribunal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 30. But under the 1996 Act, the Court has only two sets of powers after the award is pronounced viz., (i) to set aside the award under Section 34(2); or (ii) to adjourn the proceedings to enable the arbitral tribunal to resume the proceedings or to take such other action as in the opinion of the tribunal will eliminate the grounds for setting aside the arbitral award. The power to correct or modify an award under Section 15 of the old Act, has also been taken away though a power is now conferred upon the arbitral tribunal itself to correct any computation errors or clerical or typographical or similar errors under Section 33 of the new Act. (f) It appears from a combined reading of sections 14, 16 and 17 of the old Act that the power to remit an award for reconsideration could be exercised even suo moto by the court. Section 14(2) of the 1940 Act speaks of the filing of the award into court either on a request made by a party to the arbitration agreement or when so directed by the court. Section 17 mandates the court to pronounce a judgment in terms of the award only if it sees no cause to remit or set aside the award. Neither section 16 nor section 17 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ensure impartiality, fairness and reasonableness in consideration. The Apex Court also opined the presence of a judicial member improves the quality of adjudication and the decision making process. 10. Under clause 64(3)(a)(ii) governing the present contract, the Arbitral Tribunal is required to be constituted by serving or retired railway officers but there is no stipulation for inclusion of a judicial member in the arbitration panel. But as was noticed in the Section 34 proceeding, the arbitration panel constituted by the 3 railway officers gave a perverse decision and failed to give any finding on some of the key claims of the contractor. Because of this, the award rendered by the arbitration panel was set aside by the impugned judgment of 21.11.2014 (Annexure-III). 11. Appointment of alternate arbitrator by Court under Section 11(6) of the Arbitration Act by making a departure from the agreed procedure is permissible in deserving cases like inordinate delay in completion of arbitration proceeding and where the Arbitral Tribunal fails to perform its functions. In such events, the Court may step in to appoint substitute arbitrator by disregarding the procedure agreed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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