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Judgment
The Court : The matter has been placed before this Court, at the instance of the Registrar, Original Side of this Court seeking appropriate direction to
deal with the facts mentioned hereinbelow. On August 9, 2016 a learned Single Judge of this Court disposed of the application, AP No.604 of 2016
filed by the petitioner abovenamed, under Section 11(6) of the Arbitration & Conciliation Act, 1996 (in short “the Act of 1996â€), by appointing a
former Judge of this Court as the sole Arbitrator to adjudicate the disputes arisen between the parties to the said application relating to an agreement
between them.
By a letter dated April 12, 2018 addressed to the Registrar, Original Side of this Court, the Arbitrator forwarded all the records of the arbitral
proceeding, together with the original arbitral award made by him, to this Court for necessary action. The concerned department of this Court
accepted the above records of the arbitral proceeding forwarded by the Arbitrator. The Registrar, Original Side has, however, sought for appropriate
direction from this Court whether, in the absence of any provision in the Act of 1996, similar to Section 14 of the Arbitration Act, 1940 (in short
“the Act of 1940â€) the department could receive the said records forwarded by the Arbitrator.
Admittedly, a learned Single Judge of this Court, in exercise of power under Section 11 of the Act of 1996, appointed the Arbitrator. Under Section 14
of the Act of 1940, which stands repealed by the Act of 1996, an Arbitrator had an obligation to send all the records of the arbitral proceeding,
including the arbitral award to the Court which had the jurisdiction to entertain any application for setting aside of the award under Sections 30 and 33
of the said Act or to pass a judgement and decree upon the award. This was for the reason, under the Act of 1940 an award passed by an Arbitrator
was not per se executable. As per Section 17 of the Act of 1940 the Court of competent jurisdiction was required to pass a judgement according to
the award and upon pronouncement of such judgment a decree would follow which was executable by the award holder.
However, section 36(1) of the Act of 1996 expressly provides that the award passed by the Arbitral Tribunal, unless set aside by Court, shall itself be
enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court. Therefore, while enacting the Act of 1996,
the legislature omitted to incorporate any provision requring the Arbitral Tribunal to forward any record of the arbitral proceeding to any court. As per
the settled law the legislature shall be deemed to have intentionally omitted to incorporate the requirement, in the Act of 1996, of the arbitral trbunal to
file the records of the arbitral proceeding before the Court.
Although, Rules 1 and 2 of Chapter XXIII of the Original Side Rules of this Court contains provisions requiring an arbitrator to forward the records of
the arbitral proceeding to this Court but the same relate to the proceedings governed by the Act of 1940, for pronouncement of a judgement as per the
arbitral award and passing the consequential decree, which is executable. In view of the position of law under the Act of 1996,as state above, Rules 1
and 2 of chapter XXIII of the Original Side Rules of this Court have no application to confer any power on the department of this Court to receive the
records of any arbitral proceeding, governed by the Act of 1996, from an arbitral tribunal.
For all the foregoing reasons, I find that in the absence of any specific direction of any learned Judge in an application under Section 34 of the Act of
1996, the department of this Court cannot receive the records of any arbitral proceeding from any arbitral tribunal. Accordingly, the Registrar, Original
Side of this Court is directed to forthwith return the records of the arbitral proceeding, in AP 604 of 2016 to the sole arbitrator. Henceforth, in the
absence of any direction being passed by the Court in an application under Section 34 of the Act of 1996, the department shall not receive any records
of any arbitral proceeding from any arbitral tribunal. The Registrar, Original Side of this Court is directed to forthwith issue an office order, informing
all concerned of the above directions passed by this Court.