KINGSTON LAW COLLEGE

(A UNIT OF KINGSTON EDUCATIONAL INSTITUTE)

ARBITRATION REPORT
ACADEMIC YEAR (2022-2025)
UNDER THE SUPERVISION OF DR. SHAMSHER ALI (HOD), KINGSTON
LAW COLLEGE

SUBMITTED BY
NAME: RAJA DAS
UNIVERSITY ROLL NO: 30322011250085
REGISTRATION NO: 3032211406398, SESSION: 2022
COLLEGE ROLL NO: 22/KLC-LL.B/203
COURSE: LL. B (3 YEARS), 6TH SEMESTER
SESSION: 2022-2025

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 KINGSTON LAW COLLEGE
(A UNIT OF KINGSTON EDUCATIONAL INSTITUTE)

ARBITRATION REPORT
ACADEMIC YEAR (2022-2025)
UNDER THE SUPERVISION OF DR. SHAMSHER ALI (HOD), KINGSTON
LAW COLLEGE

SUBMITTED BY
NAME: RAJA DAS
UNIVERSITY ROLL NO: 30322011250085
REGISTRATION NO: 3032211406398, SESSION: 2022
COLLEGE ROLL NO: 22/KLC-LL.B/203
COURSE: LL. B (3 YEARS), 6TH SEMESTER
SESSION: 2022-2025

___________________________________________________________
SIGNATURE OF THE GUIDE - DR. SHAMSHER ALI (HOD)

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 Table of Contents
SL. PARTICULARS PAGE
NO. NO.
1. DECLARATTION 4
2. CERTIFICATE 5
3. ACKNOWLEDGEMENT 6
4. INTRODUCTION OF ARBITRATION 7
5. ARBITRATION AGREEMENT 8
6. WHAT IS ARBITRATION AGREEMENT AS PER 9
ACT
7. ESSENTIALS OF AN ARBITRATION 10 – 11
AGREEMENT
8. APPOINTMENT OF ARBITRATORS 12 - 13
9. WHO CAN ENTER INTO ARBITRATION 14
AGREEMENT
10. POINTS TO REMEMBER WHILE DRAFTING 15- 16
AGREEMENT
11. TERMINATION OF ARBITRATION 17
AGREEMENT
12. MEDIATION 18
13. WHAT IS MEDIATION 19
14. WHY DO WE NEED MEDIATION 19
15. COMPARISON 20
16. CASE LAWS 21 – 36
17. CONCLUSION 37

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 DECLARATTION

I, RAJA DAS, A STUDENT OF LL.B (3 YEARS), KINGSTON LAW

COLLEGE, BEARING COLLEGE ROLL NO- 22/KLC-LL.B/203,
HEREBY DECLARE THAT THIS ASSIGNMENT IS MY OWN, IT HAS
NOT BEEN PREVIOUSLY SUBMITTED FOR EXAMINATION IN
FULFILMENT OF THE REQUIREMENT OF THE DEGREE OF LAW
FROM THIS OR ANY OTHER UNIVERSITY BEFORE.

SUBMITTED BY

NAME: RAJA DAS

UNIVERSITY ROLL NO: 30322011250085
REGISTRATION NO: 3032211406398, SESSION: 2022
COLLEGE ROLL NO: 22/KLC-LL.B/203
COURSE: LL. B (3 YEARS), 6TH SEMESTER
SESSION: 2022-2025

____________________________________________
SIGNATURE OF THE STUDENT – RAJA DAS

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 CERTIFICATE

THIS IS TO CERTIFY THAT RAJA DAS, STUDENT OF KINGSTON

LAW COLLEGE, LL.B (3 YEARS) BEARING COLLEGE ROLL NO:
22/KLC-LL.B/203, REGISTRATION NO: 3032211406398,
SESSION: 2022-2025, UNIVERSITY ROLL NO:
30322011250085, UNDER WEST BENGAL STATE UNIVERSITY
HAS DONE THIS PROJECT WORK UNDER GUIDANCE OF DR.
SHAMSHER ALI, HEAD OF THE DEPARTMENT (HOD)
TOWARDS THE FULFILMENT OF LL.B DEGREE DURING THE
PERIOD OF 2022-2025.

PLACE: KOLKATA
DATE:

_______________________
SUPERVISOR
DR. SHAMSHER ALI,
HEAD OF THE DEPARTMENT (HOD)
(KINGSTON LAW COLLEGE)

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 ACKNOWLEDGEMENT

I, RAJA DAS, A STUDENT OF LL.B (3 YEARS), KINGSTON LAW

COLLEGE, BEARING COLLEGE ROLL NO: 22/KLC-LL.B/203,
HAS PREPARED THIS ARBITRATION REPORT. THE FINAL
OUTCOME OF THIS ASSIGNMENT REQUIRED EXTENSIVE
GUIDANCE AND ASSISTANCE WHICH I GOT FROM MY HEAD OF
THE DEPARTMENT DR. SAMSHER ALI AND OUR PRINCIPAL SIR
DR. SUMAN GUPTA SHARMA AND FROM OTHER FACULTY
MEMBERS AND I AM EXTREMELY FORTUNATE TO HAVE GOT
THIS ALL ALONG WITH THE COMPLETION OF MY PROJECT
WORK. I RESPECT AND THANK ALL MY TEACHERS FOR GIVING
ME AN OPPORTUNITY TO DO THIS PROJECT WORK AND ALSO
BY PROVIDING ALL THE SUPPORT THAT WAS REQUIRED TO
ACCOMPLISH THIS PROJECT.

ALSO, I WOULD LIKE TO ACKNOWLEDGE THAT THIS PROJECT

WAS COMPLETED ENTIRELY BY ME AND NOT BY SOMEONE
ELSE.

SINCERELY,
NAME: RAJA DAS
UNIVERSITY ROLL NO: 30322011250085
REGISTRATION NO: 3032211406398, SESSION: 2022
COLLEGE ROLL NO: 22/KLC-LL.B/203
COURSE: LL. B (3 YEARS), 6TH SEMESTER
SESSION: 2022-2025

____________________________________________
SIGNATURE OF THE STUDENT – RAJA DAS

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 INTRODUCTION OF ARBITRATION

Arbitration is a method of settlement of disputes as an alternative

to the normal judicial method. It is one of the methods of
Alternative Dispute Resolution (ADR). Of all the forms of ADR
like conciliation, mediation, negotiations, etc. arbitration has
become the dominant form of ADR. It is more firmly established in
its utility. Alternative Dispute Resolution was conceived of as a
dispute resolution mechanism outside the court of law established
by the Sovereign or the State. ADR can be defined as a collective
description of process or mechanisms that parties can use to
resolve disputes rather than bringing a claim through the formal
court structure. ADR is a part of civil justice system with the United
Kingdom. It is a key aspect of the civil justice system and has grown
over the past forty years.

The law relating to arbitration is contained in the Arbitration and

Conciliation Act, 1996. It came into force on the 25th of January,
1996. It provides for domestic arbitration, international
commercial arbitration and also enforcement of foreign arbitral
awards. It also contains the new feature on conciliation. Like
arbitration, conciliation is also getting increasing worldwide
recognition as an instrument for settlement of disputes. However,
with the passage of time, the phrases “Arbitration and ADR” came
in vogue, which implied that arbitration was distinct from other
ADR forms.

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 ARBITRATION AGREEMENT

Arbitration agreement is a written agreement between the parties

to a contract or otherwise, committing themselves to resolve all the
issues arising out of a contract or otherwise through arbitration. It
can be either a separate agreement between parties to a contract
(or any legal relationship) or a clause in the contract itself by which
both the parties agree to resolve the disputes arising out of the
contract or otherwise by way of an Arbitration only. Arbitration
agreement between the parties takes away the right of the parties
to approach the Court to resolve their disputes. The parties in case
of disputes between them, with regard to the issues covered by the
arbitration agreement, have to necessarily choose arbitration only.
If any one of the party approaches directly a Court of law seeking
remedy in a matter, where there is an arbitration clause between
them, the other party can approach the court, file an application
seeking the court to refer the matter to arbitration since there is an
arbitration clause in the contract. The Court will be left with only
an option to refer the matter to arbitration.

Section 7 of the Arbitration and Conciliation Act, 1996 defines

arbitration agreement as an Agreement by the parties to submit to
arbitration all or certain disputes which have arisen or Which may
arise between them in respect of a defined legal relationship,
whether contractual or Not.

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 WHAT IS ARBITRATION AGREEMENT AS PER
THE ARBITRATION AND CONCILIATION ACT,
1996?

According to Section 7of Arbitration Conciliation Act, 1996 the

features of Arbitration Agreement are:-

[Link] arbitration agreement may be in the form of an arbitration

clause in a contract or in the form of a separate agreement.
[Link] arbitration agreement shall be in writing.
[Link] arbitration agreement is in writing if it is contained in :
A. a document signed by the parties;
B. an exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of the agreement;
or
C. An exchange of statements of claim and defense in which the
existence of the agreement is alleged by one party and not
denied by the other.
[Link] reference in a contract to a document containing an
arbitration clause constitutes an arbitration agreement if the
contract is in writing and the reference is such as to make that
arbitration clause part of the contract.

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 VALID ESSENTIAL OF AN ARBITRATION
AGREEMENT
A. The agreement should be in writing.
B. The parties should have agreed to refer any disputes (present
or future) between them to the decision of a private tribunal.
C. The private tribunal should be empowered to adjudicate upon
the disputes in an impartial manner, giving due opportunity
to the parties to put forth their case before it.
D. The parties should have agreed that the decision of the Private
Tribunal in respect of the disputes will be binding on them.

1. Written Agreement: An arbitration agreement must be in

writing1. It need not be in any particular form. It may be a
single document containing all the terms or can comprise of
two documents. However, an oral agreement of arbitration is
not legally recognized in India.

2. Capacity of the Parties: An arbitration agreement must be

in compliance with all the requirements of a valid contract. It
will be binding on the parties unless it is influenced by fraud,
coercion or undue influence. The parties must have requisite
capacity for entering into the contract. Lack of such capacity
invalidates the contract.

3. Intention: Another very important element is the intention

of the parties to refer disputes already arisen or likely to arise
in respect of a contract. A binding contract require
consensus ad idem. It generally includes appointment of
arbitrators, seat and the venue of the arbitration proceedings,
choice of language and other procedures for proceedings and
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 pleadings. If the intention of the parties is clearly discernible
from the terms of the agreement, the presence or absence of
the words ‘arbitration’, ‘arbitrator’, or ‘arbitral tribunal’ does
not matter.

4. Independent Clause: An arbitration clause in a contract is

treated as an independent contract and even if main contract
is itself illegal and void, it does not make the arbitration
clause invalid. The contract survives for determining and
measuring the claims arising out of breach and the
arbitration clause survives for the mode of their
settlement. This provision was incorporated with a view to
give power to the arbitral, tribunal not only to rule on its own
jurisdiction but also to decide objection with respect to the
existence or validity of the arbitration agreementi.

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 APPOINTMENT OF ARBITRATORS-
The Arbitration and Conciliation (Amendment) Act, 2015
grants the liberty to the parties to appoint an arbitrator mutually.
The Act provides that the parties are free to determine the number
of arbitrators, provided that such number shall not be an even
number. However, if the parties fail to do so, the arbitral tribunal
shall consist of a sole arbitrator.

The procedure in relation to appointment of arbitrator(s) is

provided under Section 11 of the Act. A person of any nationality
may be an arbitrator, unless otherwise agreed by the parties. The
aforesaid section also deals with the contingency wherein the
parties fail to appoint an arbitrator mutually. In such a situation,
the appointment shall be made, upon request of a party, by the
Supreme Court or any person or institution designated by such
Court, in the case of an International Commercial arbitration or by
High Court or any person or institution designated by such Court,
in case of a domestic arbitration.

Before the appointment of arbitrator is made, the concerned Court

or the person or institution designated by such Court is required
to seek a disclosure in writing from the prospective arbitrator in
terms of Section 12(1) of the Act and also give due regard to any
qualifications required for the arbitrator by the agreement of the
parties and the contents of the disclosure and other considerations
as are likely to secure the appointment of an independent and
impartial arbitrator.

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It may be noted that under Section 12(1) of the Act, an obligation
has been cast upon the prospective arbitrator to make an express
disclosure on;-
a. circumstances which are likely to give rise to justifiable
doubts regarding his independence or impartiality; or
b. grounds which may affect his ability to complete the
arbitration within 12 (twelve) months.

The purpose of this provision is to secure the appointment of an

unbiased and impartial arbitrator.

Fifth Schedule to the Act (Annexure-A) contains a list of grounds

giving rise to justifiable doubts as to the independence or
impartiality of an arbitrator. The Seventh Schedule (Annexure-B)
lays the grounds which make a person ineligible to be appointed
as an arbitrator.

The Act provides that in an International Commercial

Arbitration, an arbitrator of a nationality other than the
nationalities of the parties may be appointed where the parties
belong to different nationalities.

Expeditious disposal of application for appointment of an

arbitrator(s) is emphasized by the Act and an endeavour shall be
made to dispose of the matter within a period of sixty days from
the date of service of notice on the opposite party.

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 WHO CAN ENTER INTO ARBITRATION
AGREEMENT

Every person who is competent to contract can enter into

arbitration agreement. In case of partnership a partner can enter
into on behalf of partnership into arbitration agreement. The
directors or other officers of the company may
enter into an arbitration agreement. A Karta of Hindu joint family
can make a valid reference to the arbitration and where he acts
Bona fide the award binds other members.

A) MINOR AND LUNATICS -

Contract by minors and lunatics are void and therefore by
themselves they cannot enter into valid agreement of arbitration.
However they can enter into arbitration agreement with their
natural or legal guardian's.

B) AGENT -
Agent recognized agent of a party can enter into an arbitration
agreement on behalf of his principal.

C) MANAGER OF HINDU JOINT FAMILY-

A manager of Hindu joint family can refer the final dispute to
arbitration.

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 POINTS TO REMEMBER WHILE DRAFTING
ARBITRATION AGREEMENT
1. SEAT OF ARBITRATION – This clause specifies the seat or
place of arbitration. The seat of arbitration determines the
procedural laws that govern the arbitration procedure. It need
not be the same as the place of hearings. Seat of arbitration is
considered to be a place where arbitrations are held even if the
place of hearings differ. Place of hearings don’t by any means
affect the chosen seat of arbitration.
2. PROCEDURE FOR APPOINTING ARBITRATORS – Section 11
of the Arbitration and Conciliation Act talks about the
appointment of arbitrators. It provides that a person of any
nationality may be appointed as an arbitrator, unless otherwise
agreed by the parties. The parties are free to agree on a
procedure for appointing the arbitrator(s). If the parties fail to
reach an agreement, in an arbitration with 3 arbitrators, each
party shall appoint one arbitrator, and the two arbitrators shall
thereafter appoint a third arbitrator, who shall be the presiding
arbitrator. The appointment of parties may be by the parties
themselves, or by the designated authority or by the arbitral
institutions. In places where the dispute involves international
commercial transaction, then the arbitrator to be appointed
shall not be of the same nationality as the parties to the dispute.
3. LANGUAGE OF ARBITRATION – It is important to mention the
language of arbitration in the agreement itself. Especially, in a
country like ours, where Hindi and English aren’t the only two
languages spoken, it would get very difficult to decide and settle
the disputes. Choosing the language of arbitration is also very

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 cost effective, because it would save you from paying exorbitant
fees to the translators.
4. NUMBER AND QUALIFICATIONS OF ARBITRATORS –
According to Section 10 of the Arbitration and Conciliation Act
of 1996, parties can determine the number of arbitrators,
provided that the number is an odd number. Failing to
determine the no. of arbitrators, the arbitral tribunal shall
consist of a sole arbitrator.
5. TYPE OF ARBITRATION – Parties can choose between
Institutional or Ad hoc arbitrations. If the parties choose the
former, then they have to be bound by the rules of the
arbitration institutions. All these institutions have their own set
of rules for arbitration and these rules would be applicable to
arbitral proceedings conducted by them. Whereas, in case of
Ad-hoc arbitrations, arbitrations are both agreed to and
arranged by the parties themselves. No help is sought from the
arbitral institutions in Ad-hoc arbitrations.
6. GOVERNING LAW – This is the law that governs the main point
of contention between the parties to a dispute. It is even known
as the substantive law. The parties should mention the law they
want to be governed by, failing which may give way to disputes
in the future.
7. NAME AND ADDRESS OF THE ARBITRATION
INSTITUTION – If the parties to the dispute are referring their
disputes to arbitration Centre, and then it is pertinent that they
mention the name and address of the arbitration facility in clear
and unambiguous words. Such inadvertent mistakes can lead
to the nullification of the arbitration clause.

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 TERMINATION OF ARBITRATION AGREEMANT

Termination of arbitration agreement by mutual consent other

grounds for termination of the arbitration agreement:

1. Although the death of one of the parties is not generally

considered a ground for termination of the agreement, it
is expressly provided for under some laws.

2. The death of the arbitrators is not normally a ground for

terminating the arbitration agreement, either. Some
laws set forth otherwise when the parties regard the
intervention of a specific arbitrator as a condition for the
arbitration.

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 MEDITATION
The concept of mediation is ancient and deep rooted in our country.
In olden days, disputes used to be resolved in a Panchayat at the
community level. Panches used to be called Panch Parmeshwar .
Now we have grown into a country of 125 crore people. With
liberalization, globalization and tremendous economic growth
there is an explosion of litigation in our country. Though our
judicial system is one of the best in the world and is highly
respected, but there is still a lot of criticism on account of long
delays in the resolution of disputes in the courts of law. A point
has now been reached when even an honest litigant is wary of
approaching the court for a decision of his dispute. Hence, we have
turned to alternative forms of dispute resolution.

We tried the system of Lok Adalats and gave statutory recognition

to it through the Legal Services Authority Act, 1987. But, it is only
a miniscule amount of litigation that has gone to the Lok Adalats,
and even those cases are mainly compensation cases, house tax
matters or small recovery disputes of big companies where only
arithmetic calculations are to be made and there is hardly any
dispute about the question of liability. The Arbitration &
Conciliation Act, 1996 replaced the Arbitration Act, 1940 but even
that has been unable to contain litigation. This is because disputes
can go to arbitration only if there is an arbitration agreement
between the parties; and experience has shown that in a very large
percentage of cases, the aggrieved party files objections to the
award, and that sometimes takes several years for disposal.

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 WHAT IS MEDIATION?

Mediation is a negotiation process in which a neutral third party

assists the disputing parties in resolving their disputes. A Mediator
uses special negotiation and communication techniques to help the
parties to come to a settlement. The parties can appoint a Mediator
with their mutual consent or the Court, in a pending litigation, can
appoint a Mediator. Mediation always leaves the decision making
power with the parties. The Mediator does not decide what is fair
or right, does not apportion blame, nor renders any opinion on the
merits or chances of success if the case is litigated. Rather the
Mediator acts as a catalyst to bring the two disputing parties
together by defining issues and limiting obstacles to
communication and settlement.

WHY DO WE NEED MEDIATION?

We need mediation because it is a good method of resolving certain
kinds of disputes especially those involving relationships.
Relationships can be personal, business, contractual or social.
These disputes are not easily resolved with the litigation process.

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 COMPARISION BETWEEN ARBITRATION AND
MEDIATION

ARBITRATION MEDIATION

Adjudication Expedited negotiation

Arbitrators control the Parties control the outcome.

outcome.
Arbitrator is given power to Mediator has no power to decide.
decide. Final and binding Settlement only with party
decision. approval.
Arbitrator listens to facts and Mediator helps the parties define
evidence and renders an and understand the issues and
award. each side's interests.
Process is formal. Attorneys Process is informal.
control party participation. Parties are active participantsii.
There might be a single Generally involves a single
arbitrator or a panel of mediatoriii.
arbitrators.
Arbitration involves a decision whereas in mediation the parties
by a neutral third party. decide for themselves.
In arbitration the focus is on In mediation the focus is on the
the arbitrator whom the parties.
parties try to persuade.
Arbitrators are generally whereas mediators can be held
exempt from civil liability or liable in negligence for their
failure to perform their duties conduct.
with care or skill

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 CASE LAWS
CASE- 1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M/S ALPINE HOUSING DEVELOPMENT VS ASHOK S DHARIWAL
CIVIL APPEAL NO. 73 OF 2023
JUDGEMENT DATED 12.06.2025

M/S ALPINE HOUSING DEVELOPMENT CORPORATION PVT. LTD.

... APPELLANT
VERSUS
ASHOK S. DHARIWAL AND OTHERS
...RESPONDENTS
CORAM:
HON'BLE MR. C.T. RAVIKUMAR, J.
HON'BLE M.R. SHAH, J.

 SYNOPSIS
M/s Alpine Housing Development Corporation Pvt. Ltd. vs.
Ashok S. Dhariwal & Ors. (2023) 1 SCC 366, decided by the
Supreme Court on January 19, 2023, is a crucial judgment
regarding the admissibility of additional evidence in a Section 34
application (for setting aside an arbitral award) under the
Arbitration and Conciliation Act, 1996.

The Supreme Court held that while an application to set aside

an arbitral award under Section 34 of the A&C Act is generally a
summary proceeding and should ordinarily rely only on the
record of the arbitral tribunal, additional evidence (like affidavits)
can be permitted in "exceptional circumstances". This is

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 particularly true if the evidence relates to grounds under Section
34(2)(a) (e.g., if the award is in conflict with the public policy of
India) and the material is not already part of the arbitral record.
The Court emphasized that such permission should be granted
cautiously, balancing the need for speedy disposal of arbitration
matters with the need to ensure justice in truly exceptional cases
where relevant facts cannot otherwise be brought before the
court.

 FACTS

The facts leading to the present appeal in a nutshell are as under:

That against the award passed by the learned arbitrators dated

12.03.1998, an application under Section 34 of the Act being
Arbitration Case No. 38/1998 has been filed by the respondents.
That the respondents filed an interim application being IA No. 4
in section 34 application to adduce additional evidence. At this
stage, it is required to be noted that as such the award passed
by the learned arbitrators was an ex-parte award and no
evidence was led by the respondents herein, who subsequently
assailed the award by way of section 34 application.

 ISSUES

Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 1.9.2021 passed by the High Court of Karnataka
at Bengaluru in Writ Petition No. 50799/2019, by which the High
Court has allowed the said writ petition and while quashing and
setting aside the order passed by the learned Additional City Civil
and Sessions Judge, Bengaluru, has permitted the respondents

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 – original writ petitioners to adduce evidence in an application
under Section 34 of the Arbitration & Conciliation Act, 1996
(hereinafter referred to as the ‘Act’), the original respondent
before the High Court and in whose favour the award has been
passed by the learned Arbitral Tribunal has preferred the present
appeal.

it does not apply to a case of alleged conflict of an award with

statute. Being a pure question of law, it can be considered on the
findings/directions recorded in the award.

 PETITIONER'S ARGUMENTS
 The appellant herein filed objections to the said interim
application seeking permission to adduce evidence on the ground
that the same was not maintainable in accordance with the
provisions of the Arbitration Act, 1996. The grounds on which
the respondents submitted an application to permit them to
adduce evidence shall be dealt with and considered hereinafter.

 Shri Krishnan Venugopal, learned Senior Advocate has appeared

on behalf of the appellant and Shri Balaji Srinivasan, learned
Advocate has appeared on behalf of the respondents – original
writ petitioners. 3.1 Shri Krishnan Venugopal, learned senior
counsel appearing on behalf of the appellant has vehemently
submitted that in the facts and circumstances of the case, the
High Court has committed a very serious error in permitting the
respondents to adduce evidence in an application under section
34 of the Act. It is submitted that the impugned judgment and
order passed by the High Court permitting the respondents to
adduce additional evidence in an application under section

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 34 of the Act is against the object and purpose of the
amending section 34(2)(a), amended vide Act No. 33/2019. It
is submitted that if in an application under section 34 of the
Act, the applicant who is aggrieved by the award passed by the
arbitral tribunal is permitted to adduce evidence, it would defeat
the object and purpose of amending section 34(2)(a) of the Act
by which the expression “furnishes proof” has been substituted
with the expression “establish on the basis of record of the
arbitral tribunal”. It is submitted that the object and purpose of
amending section 34(2)(a) of the Act is to decide and dispose of
the arbitration proceedings at the earliest and to avoid delay.

 It is further submitted by Shri Krishnan Venugopal, learned

senior counsel appearing on behalf of the appellant that though
it was conceded before the High Court by the counsel appearing
on behalf of the appellant that section 34 of the Act prior to
amendment amending section 34(2)(a) shall be applicable, the
said concession is not binding as the same would be against the
law and any concession contrary to law shall not be binding. It
is submitted that therefore according to him the provisions
of section 34(2)(a) post amendment shall be applicable by which
in the proceedings under section 34 of the Act, the applicant is
not required to furnish proof on the grounds set out in section
34 (2)(a) to set aside the award and the court dealing
with section 34 application has to decide the same only on
exceptional circumstances enumerated under section
34(2)(a) of the Act on the basis of the record available. It is
submitted that therefore the applicants cannot have a right to
produce additional evidence/evidence.
24 | P a g e
 (a) and (b). It is submitted that the effect of “the court finds that”
in section 34(2)(b) is that the court can on its own decide based
on the arbitral award that the dispute was not arbitrable or that
award conflicts with public policy. It is submitted that therefore,
the disjunctive “or” between clauses (a) and (b) of section
34(2) cannot be read as the conjunctive “and”.

(b) must be established on the basis of the record of the arbitral

tribunal. It is submitted that even assuming proof is required
under section 34(2)

 It is further urged by the learned senior counsel appearing on

behalf of the appellant that if this Court is inclined to allow the
respondents to lead evidence, in that case, (a) the appellant may
be permitted to lead evidence including the permission for
clubbing khatas where there are nalas and the corporation’s
later endorsement dated 28.6.2004 agreeing to consider
clubbing of khatas concealed by the respondents, and (b) the
questions of law regarding whether the corporation’s refusal falls
under section 34(2)(b) may kindly be left open.

 RESPONDENT'S ARGUMENTS
 It is further submitted that even otherwise and assuming that
the provisions applicable prior to amendment (Act 33 of 2019)
are applicable, in that case also, as the respondents – original
applicants have assailed the award on the grounds enumerated
under section 34(2).

 It is further submitted that even otherwise on merits also,

general rule is that unless exceptional circumstances are made

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 out, no additional evidence is permissible. It is submitted that
the present case does not fall within the meaning of “exceptional
circumstances” as held by this Court in the case of Canara Nidhi
(supra). It is submitted that the directions in the award that the
parties shall apply for statutory permissions is the legally correct
decree to pass in a suit for specific performance. Therefore, the
award cannot be said to be in conflict with “public policy of
Indian law.”

 It is submitted that the respondents’ contention that the award

is frustrated because corporation refused permission for
clubbing of khatas which is the basis for award to be executed
does not fall within the conflict with public policy ground under
section 34(2)(b) because it is the award and not its execution that
must conflict with the public policy of India. It is submitted that
apart from the fact that the respondents contention is premised
on his having accepted the award, the corporation’s alleged
refusal is admittedly a subsequent event after the award. It is
submitted that it is the executing court that would determine
that the decree is inexecutable due to change in circumstances.
It is submitted that the evidence can be led during execution. It
is submitted that the respondents are bound to suffer the
consequence of their wilful failure to participate in the arbitration
proceedings before the arbitral tribunal, despite attending them
after the rejection of their objection to the jurisdiction of the
Tribunal. It is submitted that therefore the respondents cannot
be allowed to lead evidence by taking advantage of their own
wrong.

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 The present appeal is vehemently opposed by Shri Balaji
Srinivasan, learned counsel appearing on behalf of the
respondents. It is submitted that in the present case initially the
respondents challenged the arbitration proceedings/constitution
of the arbitral tribunal and therefore did not participate in the
arbitration proceedings. It is submitted that thereafter the
arbitral tribunal proceeded with the hearing ex-parte. It is
submitted that therefore as such no evidence was adduced or led
by the respondents before the arbitral tribunal. 4.1 It is
submitted that in the present case the arbitration proceedings
begun on 7.2.1997 under old Arbitration Act, 1940 and on
25.03.1997 arbitrators arbitrarily decided to proceed with the
arbitration proceedings under the Arbitration Act, 1996. It is
submitted that the respondents withdrew from the arbitration.
That thereafter the respondents filed an application challenging
the bias and higher fees before the arbitral tribunal. However,
ex-parte award dated 12.03.1998 came to be passed for specific
performance of the agreement reserving liberty to apply for
amalgamation of khatas. It is submitted that in fact though it
was for the appellant to apply for amalgamation of khatas but it
did not and it was the respondents who applied for the same
twice. It is submitted that applications for amalgamation of
khatas made by respondents twice have been rejected due to
presence of RzajaKaluve or rain water drain. It is submitted that
therefore the respondents made an application to produce the
evidence in section 34 application to produce the final
endorsement dated 17.03.2003 by which the prayer for
amalgamation of khatas to plots were rejected and thereafter it

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 is required to examine the concerned officer. It is submitted that
therefore it is the case on behalf of the respondents that the
award is incapable of being implemented and/or executed in
view of section 34(2)(b) (i) & (ii) of the Arbitration Act, 1996 and
section 56 of the Indian Contract Act. It is submitted that
therefore according to the respondents the enforcement of the
award is contrary to Public Policy, Local Law & void arbitration
proceedings further leading to Section 56 of the Indian Contract
Act. 4.2 It is submitted that as such in the present case the
provisions prior to the amendment to section 34(2)(a) of the Act,
i.e., prior to Act 33/2019 shall be applicable in which the words
used are “furnish proof”. It is submitted that as such the words
“ furnish proof” shall be applicable with respect to an application
to set aside the award on the grounds set out in section 34(2)(a)
& 34(2)(b) and not section 34(2)(a) alone, as sought to be
contended on behalf of the appellant.

 Now so far as the question, whether in an application filed under

section 34(2)(a) pre-amendment where the requirement is that
the party making an application has to “furnish proof”, whether
such an applicant can be permitted to adduce evidence by way
of affidavit or otherwise is concerned, few decisions of this Court
are required to be referred to.

 Now so far as the submission on behalf of the appellant that the

requirement of “furnishing proof” as per pre-amendment of
section 34(2).

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 COURT'S REASONING
 We have heard learned counsel for the respective parties at
length. (a) of the Arbitration Act shall not be applicable to the
application for setting aside the award on the grounds set out in
section 34(2)(b) and the submission that in the execution
proceedings the subsequent development of refusing to grant
permission for amalgamation of the plots can be considered and
it will be open for the applicants to point out in the execution
proceedings that the award is not capable of being executed is
concerned, at the outset, it is required to be noted that even for
establishing that the arbitral award is in conflict with Public
Policy of India, in a given case, that the arbitral award is in
conflict with Public Policy of India and/or the subject matter of
dispute is not capable of settlement by arbitration under the law
for the time being in force. However, at the same time, from the
record before the arbitrator, if the same can be established and
proved that the subject matter of the dispute is not capable of
settlement by arbitration under the law for the time being in force
or the arbitral award is in conflict with the Public Policy of India,
in that case, the person may not be permitted to file the affidavit
by way of evidence/additional evidence.

 Now so far as the submission on behalf of the appellant that the

subsequent development of refusing to grant permission by the
appropriate authority to amalgamate the plots can be considered
in the execution proceedings , a person against whom the award
is passed and who alleges on the grounds set out in section
34(2)(b) before the executing court, the executing court may hold
that the award is not capable of being executed is concerned, it

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 is required to be noted that so far as one of the grounds set out
in section 34(2)(b), namely, that the arbitral award is in conflict
with the Public Policy of India, the said ground could be available
only after passing of the award.

 From the affidavit, which is sought to be placed in the

proceedings under Section 34 of the Act, it is seen that the
respondents want to place on record the communication from
the appropriate authority by which the application for
amalgamation of the plots is rejected. At this stage, it is required
to be noted that the arbitral tribunal has passed the decree for
specific performance of the contract/agreement, subject to the
amalgamation of the plots. Therefore, it is the case on behalf of
the respondents that in view of the refusal of the permission by
the appropriate authority to amalgamate the plots, the case falls
under section 34(2)(b), namely, that the dispute is not capable of
settlement under the law for the time being in force and that the
arbitral award is in conflict with the Public Policy of India,
namely, against the relevant land laws. The event of refusal to
amalgamate the plots is subsequent to the passing of the award
and therefore naturally the same shall not be forming part of the
record of the arbitral tribunal. Even otherwise, it is required to
be noted that the award of the arbitral tribunal was an ex- parte
award and no evidence was before the arbitral tribunal on behalf
of the respondents. We are not opining on whether the arbitral
tribunal was justified in proceeding with the further proceedings
ex-parte or not. Suffice it to record that before the arbitral

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 tribunal, such evidence was not there and nothing was on record
on the amalgamation of the plots.

 The affidavit thus discloses specific document and the evidence

requires to be produced. In that view of the matter, a strong
exceptional case is made out by the respondents to permit them
to file affidavits/adduce additional evidence. However, at the
same time, the appellant also can be permitted to cross-examine
and/or produce contrary evidence.

 CONCLUSION/ JUDGEMENT

 Making above submissions, it is prayed to dismiss the present

appeal.

 Now the next question fell for consideration is, whether the
present case is such an exceptional case that it is necessary to
grant opportunity to the respondents to file affidavits and adduce
evidence and whether any case is made out for the same.

 In view of the above and for the reasons stated above, we are of
the opinion that the High Court has not committed any error in
permitting the respondents to file affidavits/additional evidence
in the proceedings under section 34 of the Arbitration Act.

 In view of the above and for the reasons stated above, the present
appeal fails and the same deserves to be dismissed and is
accordingly dismissed. However, it is observed that the appellant
herein may also be permitted to cross-examine and/or lead
contrary evidence including the permission for clubbing khatas

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 where there are nalas as it is the case of the appellant that
thereafter the corporation vide endorsement dated 28.6.2004
has agreed to consider clubbing of khatas. As and when such
evidence is produced/led, the same may also be dealt with by the
concerned court in accordance with law and on its own merits.
However, at the same time, the court dealing with section 34
application shall finally decide and dispose of section 34
application expeditiously, considering the object and purpose of
the Arbitration Act, namely, speedy disposal.

 With these observations, the present appeal is dismissed. There

shall be no order as to costs.

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 CASE – 2

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
TATA SONS PVT. LTD. (FORMERLY TATA SONS VS SIVA
INDUSTRIES AND HOLDINGS LTD. ON 5 JANUARY, 2023
MISCELLANEOUS APPLICATION NO 2680 OF 2019
IN
ARBITRATION CASE (CIVIL) NO 38 OF 2017

TATA SONS PVT LTD (FORMERLY TATA SONS LTD)

… PETITIONER
VERSUS
SIVA INDUSTRIES AND HOLDINGS LTD & ORS
… RESPONDENTS
CORAM:
HON'BLE DR DHANANJAYA Y CHANDRACHUD, CJI.

 SYNOPSIS

Under the amended provisions of Section 29-A, Arbitral Tribunals

in international commercial arbitrations are merely encouraged to
complete the proceedings within twelve months after the
conclusion of pleadings. Unlike domestic arbitrations, they are not
obligated to adhere strictly to the specified time-limit. The
elimination of the mandatory time-frame for delivering an arbitral
award in international commercial arbitrations does not bestow
rights or obligations upon any party. As the amended provisions of
Section 29-A are remedial in nature, they would be applicable to

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all ongoing/pending arbitral proceedings as of its effective date i.e.
30-8-2019.

 FACTS
 In 2006, Tata Sons Private Limited (Tata Sons), along with Siva
Industries and Holdings Limited (Siva Industries) and Tata Tele
Services Limited (TTSL), entered into a share subscription
agreement for the issuance/allotment of TTSL’s shares to Siva
Industries.
 Subsequently, in November 2008, Tata Sons, TTSL, and NTT
Docomo Inc (Docomo) entered into another share subscription
agreement, wherein Docomo sought to acquire a 26%
shareholding in TTSL, comprising both fresh and secondary
shares. Siva Industries was invited to participate in the sale of
secondary shares to Docomo. Accordingly, on 3-3-2009, Docomo
and Siva Industries executed a share purchase agreement,
resulting in Docomo acquiring 20.740 million equity shares of
TTSL from Siva Industries. The mutual understanding among
Tata Sons, TTSL, and Docomo in relation to Docomo’s ownership
of shares was documented in a shareholders agreement (SHA)
dated 25-3-2009.
 Subsequently, in November 2008, Tata Sons, TTSL, and NTT
Docomo Inc (Docomo) entered into another share subscription
agreement, wherein Docomo sought to acquire a 26%
shareholding in TTSL, comprising both fresh and secondary
shares. Siva Industries was invited to participate in the sale of
secondary shares to Docomo. Accordingly, on 3-3-2009, Docomo
and Siva Industries executed a share purchase agreement,
resulting in Docomo acquiring 20.740 million equity shares of

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 TTSL from Siva Industries. The mutual understanding among
Tata Sons, TTSL, and Docomo in relation to Docomo’s ownership
of shares was documented in a shareholders agreement (SHA)
dated 25-3-2009.
 Consequently, Tata Sons called upon Siva Industries and its
promoter to make proportionate payments per the inter se
agreement. Disputes arose between Tata Sons and Siva
Industries, leading Tata Sons to invoke arbitration. The
arbitrator, appointed by the Supreme Court, entered the
reference on 14-2-2018. It was agreed that the mandate to render
an award would run until 14-8-2019. In the interim, insolvency
proceedings were initiated against Siva Industries, and a
moratorium was imposed on 5-7-2019.
 On 14-12-2019, Tata Sons filed a miscellaneous application
before the Supreme Court, seeking an extension of the Arbitral
Tribunal’s mandate once the moratorium on Siva Industries was
lifted. Meanwhile, Section 29-A of the Arbitration and
Conciliation Act, 1996 (Arbitration Act) was amended, effective
from 30-8-2019. Subsequently, on 3-6-2022, Siva Industries was
released from the rigours of the corporate insolvency resolution
process (CIRP).
 In light of these developments, Tata Sons filed an interlocutory
application, contending that due to the amendments to Section
29-A of the Arbitration Act and the release of Siva Industries from
the CIRP, the arbitral proceedings should be allowed to continue
automatically.

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 JUDGEMENT/ CONCLUSION
 The Supreme Court examined Section 29-A of the Arbitration Act
as it stood pre and post-2019 Amendment. Following the 2019
Amendment, the Supreme Court observed that the addition of
the phrase “in matters other than international commercial
arbitration” in Section 29-A(1) was aimed at exempting
international commercial arbitrations from the strict timeline
outlined in Section 29-A for delivering arbitral awards.
 Interpreting both the pre and post-2019 Amendment versions of
Section 29-A, the Supreme Court concluded that after the
amendment, in international commercial arbitrations, the
arbitral tribunal is, at most, obligated to make an effort to issue
the arbitral award within 12 months. Consequently, the 12-
month time-frame is specifically applicable to domestic
arbitrations and serves as a non-binding guideline for
international commercial arbitrations.
 Regarding the prospective or retrospective application of the
Section 29-A Amendment, the Supreme Court stated that the
removal of a mandatory time-limit for international commercial
arbitration does not establish new rights or liabilities. Therefore,
Section 29-A(1) should be applicable to all ongoing arbitral
proceedings as of the effective date i.e. 30-8-2019.
 In light of these considerations, the Supreme Court directed the
sole arbitrator to provide suitable procedural directions for time
extension while simultaneously ensuring a prompt conclusion of
the arbitration process.

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 CONCLUSION

It is said that when two great powers disagree about anything it

doesn’t matter what they must find a way to settle it somehow by
arbitration or by negotiation, not by war or threat of war. All the
wars follies very expensive and very mischievous ones. In my
opinion there never was a good war or a bad peace when will
mankind be convinced and agree to settle their difficulties by
arbitration. The foundation of arbitration is the arbitration
agreement between the parties to submit to arbitration all are
certain disputes which have arisen or which may arise between
them. Thus, the provision of arbitration can be made at the time of
entering the contract itself, so that if any dispute arises in future,
the dispute can be referred to arbitrator as per the agreement. It is
also possible to refer a dispute to arbitration after the dispute has
arisen. Arbitration agreement may be in the form of an arbitration
clause in a contract or in the form of a separate agreement. The
agreement must be in writing and must be signed by both parties.
The arbitration agreement can be by exchange of letters, document,
telex, telegram etc.

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