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Whether court deciding petition U/S 34 of Arbitration Act has jurisdiction to remand the matter to arbitrator for fresh decision?

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10386 OF 2018
(Arising out of SLP (C) No. 2334/2018)

RADHA CHEMICALS Appellant(s)

VERSUS

UNION OF INDIA Respondent(s)

O R D E R
1) Leave granted.

2) Heard the learned Counsel appearing for the parties.

3) By an Award dated 28.02.2007, the Sole Arbitrator held that

limitation would not stand in the way of a decision on merits, as a result of which an Award was made for a sum of Rs. 21,60,440/- together with 12% interest.

4) In a Section 34 petition filed before the learned Single Judge, the learned Single Judge found that the point of limitation had not been decided correctly and, therefore, remanded the matter to the Arbitrator in order that this point be decided afresh. He also went on to add that a new Arbitrator would have to be appointed in order to decide this afresh as he did not know about the whereabouts of the original Arbitrator. From this, an Appeal was preferred to the Division Bench, which, by the impugned Signature Not Verified judgment dated 06.11.2017, dismissed the Appeal against the learned Single Judge’s judgment.

Reason:

5) This Court in a series of judgments culminating in Kinnari Mullick and Another vs. Ghanshyam Das Damani, (2018) 11 SCC 328 held that the court while deciding a Section 34 petition has no jurisdiction to remand the matter to the Arbitrator for a fresh decision. It is, therefore, clear that the learned Single Judge’s judgment is contrary to this judgment as a result of which both the judgments of the Single Judge as well as the Division Bench have to be set aside.

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6) We, therefore, set aside both the judgments and relegate the matter to the stage of the original Section 34 petition, which now has to be heard, on its merits in accordance with the parameters laid down by this Court for decision under Section 34 of the Arbitration and Conciliation Act, 1996.

7) Accordingly, we remand the matter to the Single Judge, who is requested to take up the matter and decide the same at the earliest considering that the Award in this case has been passed over ten years ago.

8) The Appeal is allowed in the aforesaid terms.

(ROHINTON FALI NARIMAN)
(NAVIN SINHA) New Delhi;

October 10, 2018.

ITEM NO.3 COURT NO.7 SECTION XVI

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 2334/2018

(Arising out of impugned final judgment and order dated 06-11-2017 in APO No. 466/2017 passed by the High Court At Calcutta) RADHA CHEMICALS Petitioner(s) VERSUS UNION OF INDIA Respondent(s) Date : 10-10-2018 This petition was called on for hearing today.

CORAM :

HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN HON’BLE MR. JUSTICE NAVIN SINHA For Petitioner(s) Mr. Partha Chakraborty, Adv.

Mr. Pawan Upadhyay, Adv.
Mr. Nishant Kumar, Adv.
Ms. Paulomi Dutta, Adv.
Mr. Surender Kumar, Adv.
Ms. Shaila Arora, Adv.
Ms. Anisha Upadhyay, AOR For Respondent(s) Mr. Aman Lekhi, ASG Mr. Atulesh Kumar, Adv.
Mr. S.K. Pathak, Adv.
Mr. Raj Bahadur, Adv.
Ms. Priyanka Dass, Adv.
Mrs. Anil Katiyar, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.

The Appeal is allowed in terms of the signed order.
(R. NATARAJAN) (TAPAN KUMAR CHAKRABORTY)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)

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