Judicial Remedies

7.1 General

The Arbitration Act 1940 dealt with three kinds of arbitrations.



1. Arbitration without intervention of court (Chapter II), i.e., when there was an arbitration agreement and the parties had initiated the arbitration proceedings, without assistance from Court.

2. Arbitration with the intervention of court where there was no suit pending (Chapter III), i.e., when there was an arbitration agreement and direction was sought by one of the parties from the court to refer the dispute to arbitration, presumably because the other party denied the arbitration agreement or refused to cooperate.

3. Arbitration in suits (Chapter IV), i.e., when there was no arbitration agreement and one of the parties had filed a suit against the other party and during the proceedings, the parties agreed to have the subject matter of the dispute referred to arbitration.

In all the three cases, the arbitration proceedings were more or less the same. When arbitration had been initiated without assistance of court, it did not mean that arbitration was conducted without intervention of the court or that the court had no authority to intervene at any stage during the arbitration proceedings. An arbitration may be initiated and the award made and complied with, without the assistance or intervention of the court. However, if it became necessary during the course of arbitration proceedings to seek the assistance of the court, any party could do so.

Under the Arbitration Act, 1940, the jurisdiction of the court could be invoked by a party for the following purposes :-



1. to appoint an arbitrator (in certain circumstances).

2. to set aside the appointment of a sole arbitrator made by any party (in certain circumstances).

3. to remove an arbitrator (in certain circumstances).

4. to revoke the authority of an arbitrator or to revoke a reference (in certain cases).

5. to obtain an order that the arbitration agreement should have no effect (in certain cases).

6. to pronounce opinion, when a special case was stated by the arbitrator.

7. to have the award filed in court, after it was pronounced, in order to obtain a decree in terms of the award.

8. to pronounce judgement according to the award and pass a decree.

9. to modify or correct an award

10. to remit an award for reconsideration

11. to extend the time for submission of an award,

12. to set aside an award

13. to pass interim orders after award was filed to prevent rights of parties being defeated.

14. to supersede the arbitration reference when the award became void or it was set aside.

15. to pass an order that a provision making an award a condition precedent to bringing an action in court should not apply under certain circumstances.

The powers of the court in certain matters mentioned above do not find a place in the new law because it limits to the minimum the intervention of court.

An arbitrator has no power to issue summons and commissions for the examination of witnesses and summons to produce documents. When during the course of the arbitration proceedings it becomes necessary to summon witnesses or documents it can be done only through the assistance of court. Any person refusing to give evidence or produce documents before the arbitrator on the orders of the court will be liable to punishment as if such defaults had been committed before the court.

Section 27 provides that the arbitral tribunal or a party with the approval of the arbitral tribunal may apply to the court for assistance in taking evidence and the court may give such assistance within its competence and according to its rules on taking evidence.

The court had power (for the purpose of arbitration proceedings) to pass orders for the preservation, interim custody or sale of any goods, and to order inspection of any property or thing which was the subject matter of the reference. It could authorize (for any of the aforesaid purposes) any person to enter upon any land or building in the possession of any party or authorize any samples to be taken or any observation to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence [section 43].

The court had also power to issue interim injunctions or appoint a receiver, secure the amount in difference in the reference or appoint a guardian for a minor or person of unsound mind for the purpose of arbitration proceedings.

In case the above powers were vested in the arbitrator by the arbitration agreement, the arbitrator himself could exercise such powers.

The new law deals with a variety of provisions as to relief under Sections 9 and 17. Section 9 empowers parties to apply to court for interim measures of protection before or during arbitral proceedings. Section 17 empowers the arbitral tribunal to order a party to take interim measures of protection on a request being made to it.

The court could modify or correct an award (a) by striking out of it something not referred to arbitration (b) by amending imperfections in form or correct any obvious error which could be amended without affecting the decision of the case, or (c) where the award contained a clerical mistake or an error arising from an accidental slip or omission (S.15).

Combined effect of sections 33 to 36 of the new law is as under :-



1. On application made to the arbitrator within 30 days of making of the award, the arbitrator can -

1. correct clerical errors etc. in the award; or

2. interpret the award.

2. Court has no power, as such, under the new law to "modify" an award, but it can set it aside on specified grounds, under the relevant provisions of the new law.

3. Subject to the above provisions, the award is final.

An award could be set aside on the following grounds :-



1. the arbitrator had misconducted himself,

2. the arbitrator had misconducted the proceedings,

3. the award was made after the arbitration had been superseded,

4. the award was made after the proceedings had become invalid,

5. the award was improperly procured, and

6. the award was otherwise invalid (Sec. 30).

The setting aside of the award on the ground of public policy is expressed in section 34(8)(b) in terms of the award being in conflict with the public policy of India. The concept is not defined as such, but Explanation to Clause (b) declares for the avoidance of any doubt, that an award is in conflict with the public policy in India if its making is induced or affected by fraud or corruption or was in violation of Section 75 or Section 81 of the new Act. It may be mentioned that Section 75 is concerned with the obligation of confidentiality, while Section 81 deals with admissibility and privilege of certain connections.

Under Section 34 an aggrieved party may apply to the court within three months of receipt of the award, for setting aside the award. The grounds are set out in Section 34(2)(a) and Section 34(2)(b), at great length. They may be stated in very brief form as follows :-



1. Incapacity of a party,

2. invalidity of the agreement,

3. want of proper notice,

4. award deals with dispute not referred to arbitration,

5. arbitral tribunal was defective in composition,

6. subject matter of the dispute not being capable of settlement by arbitration under the law for the time being in force,

7. arbitral award being in conflict with public policy.

The court could remit an award back to the arbitrator for reconsideration by him if (a) the award left any of the matters referred undetermined (b) a part of it was upon a matter which had not been referred to arbitration and that part could not be separated from the remaining part without affecting the decision of the matter which had been referred to arbitration (c) it was so indefinite as to be incapable of execution (d) when there was an objection to its legality which was apparent on the face of it [Section 16].

It was in the discretion of the court to remit the award for reconsideration. An award remitted must be submitted to the court after reconsideration within the stipulated time failing which the award became void.

A foreign award could not be remitted to the arbitrator as the arbitrator is not subject to the court’s jurisdiction. In the case of a defective foreign award, the court could declare the award void and refuse to enforce it.

In the scheme of the new law, there is no scope for remission. This law deals with grounds for setting aside the award.

The High Courts are authorized to frame rules to facilitate certain aspects of court proceedings on arbitration, such as, filing of awards, referring a special case for the opinion of the court and stay of suit.

Under Section 82 of the new law the High Court may make rules consistent with the provisions of the Act, as to all proceedings before the Court under the Act.