1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.225 OF 2008 Palador Pictures Pvt. Ltd. & Ors. ....Petitioners V/s UTV Software Communications Ltd. .... Respondent. Mr. E.P. Bharucha, Senior Counsel with Mr. Vaibhav Joglekar i/b Udwadia & Udeshi for petitioners. Mr. D.D. Madon, Senior Couhnsel with Mr. Snehal Shah i/b Thakore Jariwala & Associates for respondent. CORAM: V.M. KANADE, J. DATE : 7TH AUGUST, 2009 P.C.: 1. Heard the learned Senior Counsel appearing on behalf of petitioner and the learned Senior Counsel appearing on behalf of respondent. 2. Petitioner is challenging the consent award which has been passed by the learned arbitrator pursuant to the consent 2 terms which were filed by parties before the learned arbitrator. 3. Mr. Bharucha, the learned Senior Counsel appearing on behalf of petitioner submitted that on account of misrepresentation made by respondent herein, petitioner signed consent terms and these consent terms were presented before the arbitrator, as a result of which an award on the basis of consent terms was passed by the learned arbitrator. He submitted that, he would like to point out various documents, compilation of which was tendered in court for the purpose of establishing the misrepresentation by respondent herein. 4. Mr. Madon, the learned Senior Counsel appearing on behalf of respondent raised a preliminary objection regarding maintainability of the arbitration petition under section 34 of the said Act for the purpose of setting aside the award which was passed on the basis of consent terms which were filed by both 3 parties. He also submitted that it is not open for petitioner to rely on documents which were not part of the arbitral proceedings before the arbitrator. 5. Mr. Bharucha, the learned Senior Counsel appearing on behalf of petitioner submitted that in view of provisions of section 34(2)(a)(ii) and 34(2)(b)(ii), petitioner was entitled to challenge even the consent award which was passed pursuant to consent terms which were filed by both parties. He invited my attention to the judgments of the Apex Court in Oil & Natural Gas Corporation Ltd. vs. Saw Pipes Ltd. reported in (2003) 5 SCC 705 (para 30 and 74) and in McDermott International Inc. vs. Burn Standard Co. Ltd and others reported in (2006) 11 SCC 181 (para 58). He also invited my attention to the judgment of the Apex Court in A.V. Papayya Sastry and Others vs. Govt. of A.P and Others reported in (2007) 4 SCC 221 (para 27 and 30). He also relied upon judgment of the Apex Court in Union of 4 India vs. Sohan Singh Sethi & Sons reported in 1995 IAD (Delhi) 268. The learned Senior Counsel also invited my attention to sections 18 and 19 of the Contract Act. He submitted that in the event of misrepresentation being made and the consent to agreement being obtained by fraud or misrepresentation, the agreement is voidable. It is further submitted that if it is held that the Petition is not maintainable, petitioner would not have any remedy since section 32 of the Arbitration Act stipulated that the arbitral proceedings shall be terminated by the final arbitral award and the final award could be set aside only under section 34 of the said Act. 6. Mr Madon the learned Counsel appearing on behalf of respondent on the other hand submitted that in view of section 5 of the Arbitration Act, judicial authority could intervene only in the manner and to the extent provided by the Act. He further submitted that the case of the petitioner would not fall either 5 under section 34(2)(a)(ii) or 34(2)(b)(ii) of the said Act. He submitted that the ratio of the judgment on which reliance is placed by the learned Counsel for petitioner wold not apply to the facts of the present case since the alleged representation which is complained of by petitioner would not fall under the category of the award being against the public policy or against justice or morality. 7. After hearing the learned Senior Counsel for both the parties at length, I am of the view that the present Petition challenging the consent award which was passed pursuant to the consent terms filed by the parties would not be maintainable. Section 34 of the Act is a self-contained Code and it lays down the circumstances under which the award can be set aside. Though the scope of section 34 has been expanded by the Supreme Court by the judgment in the case of Oil & Natrual Gas Corporation Ltd. (supra) and which has been further 6 affirmed by the Apex Court in Mcdermott International Inc. (supra), yet, neither of these judgments refer to the power of this Court under section 34 for setting aside the consent award passed on the basis of consent terms filed by parties. In fact, in view of provisions of the said Act, the arbitrator has no other option but to pass an award in terms of the consent terms which were filed in view of specific provisions of section 30(2). If the legislature would have so intended, it could have added the ground of misrepresentation and fraud as a ground of challenge under section 34 of the said Act. In my view, ratio of the judgments on which reliance is placed by the learned Counsel appearing on behalf of petitioners would not apply to the facts of the present case. In the present case, the question of award being against the public policy or morality or justice does not arise since both parties and their respective advocate have signed consent terms. So far as judgment in the case of Sohan Singh Sethi & Sons (supra) is concerned, the said judgment was under 7 the old Act and the learned Judge (R.C. Lahoti, J. as he then was) observed that if one of the grounds under section 30 was available for the purpose of challenging the award, then, in such circumstances, even evidence could be led before the Court. The ratio of the said judgment, therefore, in my view, would not apply to the facts of the present case. 8. Viewed from any angle, therefore, it is not possible to entertain this Petition. Petition is dismissed. Liberty is granted to the petitioner to adopt such remedy as is available to the petitioner in accordance with law. (V.M. KANADE, J.)