Whether it is necessary to adduce evidence while deciding application for setting aside arbitral award u/s 34 of Arbitration Act?

 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. Given the
current state of the law, we are of the view that the two early Delhi High
Court judgments, cited by us hereinabove, correctly reflect the position in
law as to furnishing proof under Section 34(2)(a). So does the Calcutta High
Court judgment (supra). 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. Crossexamination
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. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8367 OF 2018
(ARISING OUT OF SLP (CIVIL) NO.33248 OF 2017)

M/S EMKAY GLOBAL FINANCIAL SERVICES LTD. Vs GIRDHAR SONDHI 

Dated:August 20, 2018.
R.F. NARIMAN, J.
Citation: AIR 2018 SC 3894,2018 (9) SCC 49

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Whether party to arbitration proceeding can take assistance of court for securing presence of witnesses?

Section 27 envisages an application to be made to the court for seeking assistance to take evidence. Such an application can be made either by the arbitral tribunal or a party with the approval of the arbitral tribunal. Thus, in case of an application by a party, the legislature itself envisaged an approval of the arbitral tribunal. This in turn puts an obligation on the arbitral tribunal to apply its mind and not to mechanically direct an application to be filed before the court.

It is in view of the aforesaid observations that the learned Counsel contends that it is not mandatory for the arbitrator to give reasons while granting its approval for a party to move an application to the court under Section 27 of the said Act.

13. I am in agreement with the submission of the learned senior counsel for the petitioner to the extent that detailed reasons may not be specified by the tribunal but at least application of mind must be available from the order passed by the tribunal.

IN THE HIGH COURT OF DELHI

CM (M) No. 733 of 2004 and CM No. 7154 of 2003

Decided On: 11.09.2006

Hindustan Petroleum Corporation Vs. Ashok Kumar Garg

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, J.

Citation:(2007) 1 Arb LR 368

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