arbapp20.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD ARBITRATION APPEAL NO. 20 OF 2009 Bharti w/o Manikchand Varma .. APPELLANT VERSUS Saraswat Co-op. Bank Ltd. .. RESPONDENT Mr. S.S. Thombre, advocate for the appellant. Mr. S.R. Deshpande, advocate for the respondent. ===== CORAM : R.M. BORDE, J. DATE : 3 rd MAY, 2011. PER COURT : 1 Appellant is raising challenge to the order passed by the Principal District Judge, Aurangabad in MARJI no. 113/2006 dated 29-7-2009. 2 It is not disputed that the parties were referred to arbitration and the arbitral proceedings were concluded and an award came to be passed against the appellant in respect of payment of amount of Rs.26,534/- alongwith interest @ 15.75% from 1-5-2004. Appellant raised challenge to the award by presenting an application under section 34 of the Arbitration and arbapp20.09 2 Conciliation Act, 1996, to the district court, which came to be rejected by the Principal District Judge, Aurangabad on 29-7-2009. 3 The scope of interference in arbitration award is stated in section 34 of the Act which reads thus :- 34 Application for setting aside arbitral award : (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3). (2) An arbitral award may be set aside by the Court only if - (a) the party making the application furnishes proof that - (i) a party was under some incapacity; or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv)the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains arbapp20.09 3 decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that - (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation – Without prejudice to the generality of sub-clause (ii) of clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral ward or, if a request had been made under section 33, from the date on which that request had arbapp20.09 4 been disposed of by the arbitral tribunal : . Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. 4 Appellant contends that he was not given proper notice of the arbitral proceeding and as such was unable to present his case and that his case is covered by section 34(2)(iii) of the Arbitration and Conciliation Act, 1996. It is in substance, contention of the appellant that after presentation of written statement by him, notice of the dates prescribed in the matter were not given. Learned Principal District Judge, Aurangabad, has considered the issue and recorded finding in paragraph no. 7 of the judgment which reads thus : 7 The record of arbitration proceeding was called. This record shows that principal debtor and guarantor appeared before the Arbitral Tribunal and time was granted for filing the written statement. In the next arbapp20.09 5 month, written statement was filed and the matter was adjourned for framing issues. The roznama prepared by the Arbitral Tribunal from 9-8-2005 shows that present applicant did not turn up after filing of the written statement. The matter was adjourned on so many occasions for giving opportunity to the parties to lead evidence, and ultimately on 10-1-2006 award came to be delivered. In view of these circumstances, it cannot be said that Arbitral Tribunal has not given sufficient opportunity to the applicant to defend the matter. 5 Considering the findings of fact recorded by the learned District Judge in respect of tendering an opportunity of hearing to the appellant, which according to the learned Judge was properly extended by the arbitrator, no interference is called for in the instant appeal. Appeal is devoid of substance hence stands dismissed. 6 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE ) JUDGE dyb