GVR INFRA PROJECTS LTD. Vs. ARUL JOTHI CONSTRUCTIONS

JUDGEMENT

(1.) Instant 'Original Petition' ('OP' for brevity) has been presented in this Court on 02.08.2013 over half a decade ago. Instant OP has been filed under Section 34 of 'The Arbitration and Conciliation Act , 1996 (Act 26 of 1996)' which shall hereinafter be referred to as 'A and C Act' for the sake of brevity and clarity.

(2.) Challenge to an arbitral award under Section 34 of 'The Arbitration and Conciliation Act 1996' (hereinafter referred to as 'A and C Act' for brevity), going by the language in which Section 34 of A and C Act is couched, is by way of an 'application', but this Court is giving the nomenclature 'Original Petition' ('OP' for brevity) for such applications under Section 34 of A and C Act. Therefore, this Court will continue to refer to instant matter as 'OP'. A OP under Section 34 of A and C Act is neither an appeal nor a revision. It is not even a full-fledged judicial review, but it is a limited judicial review within the contours and confines of Section 34 of A and C Act. By contours and confines of Section 34 of A and C Act, this Court refers to 8 slots adumbrated in Section 34 of A and C Act. This Court chooses to deploy the term 'slots' in preference to 'grounds', as instant OP is neither an appeal nor a revision and it is not even a full-fledged judicial review as already mentioned. 5 slots are adumbrated under Section 34(2)(a) , 2 slots are adumbrated under Section 34(2)(b) and one slot figures under Section 34 (2-A). To put it differently, instant OP is a mere challenge to an award. When it comes to 'challenge to an award', the principle is, if a petitioner/applicant is able to fit his case into any one or more of the eight slots snugly and neatly, the award will be dislodged/set aside. If that not be so, the award will not be interfered with. This is owing to 'minimum judicial interference' in 'Alternate Dispute Resolution' ('ADR' for brevity) mechanism, which is the sublime philosophy and salutary principle qua scheme of A and C Act. In this context, this Court chooses to describe the eight slots adumbrated in Section 34 as eight pigeon holes. To be noted, two of these pigeon holes i.e., conflict with public policy and patent illegality slots are even in the nature of keyholes/pinholes, as they have been further circumscribed by limiting factors, such as (a) not entailing review on merits, (b) making re-appreciation of evidence impermissible and (c) eliminating even erroneous application of law as a ground.

(3.) In the light of Sub Section (6) of Section 34 of A and C Act, instant OP is a vintage OP. To be noted, Sub Section (6) of Section 34 of A and C Act provides a time line of one year for disposal of applications assailing arbitral awards and the one year time line was emphasised by Hon'ble Supreme Court in State of Bihar Vs. Bihar Rajya Bhumi Vikas Bank Samiti reported in (2018) 9 SCC 472. To be noted, though Bhumi Vikas case law is an authority for the proposition that pre proceedings notice under sub-section (5) of Section 34 is only directory and not mandatory, there is an observation in the Bhumi Vikas case law that every endeavour should be made by courts dealing with Section 34 OPs to adhere to one year time line in sub-section (6) of Section 34 . In any event, instant OP was filed prior to 23.10.2015. Therefore, the reckoning date can be the date of filing of instant OP. This Court is conscious of the fact that both Sub Sections (5) and (6) were inserted in Section 34 of A and C Act on and from 23.10.2015, which is post presentation of instant OP. Without entering upon any discussion regarding applicability of amendments to pre 23.10.2015 proceedings, suffice to say that expeditious disposal is one of policies of 'Alternate Dispute Resolution' ('ADR') mechanism, this Court deems it appropriate to open with the observation that instant OP is a vintage OP.