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Union Of India & Others v. Nicco Corporation Ltd. & Others - WRIT - C No. 15398 of 2007  RD-AH 7448 (23 April 2007)
Civil Misc. Writ Petition No.15398 of 2007
Union of India and others...................................................Petitioners
NICCO Corporation Ltd. And others.............................Respondents.
Hon.Tarun Agarwala, J.
Heard Sri V.K.Goel, the learned counsel for the petitioners and Sri Naveen Sinha, the learned Senior Counsel assisted by Sri Ashish Srivastava, for respondent No.1.
It transpires that an arbitrator gave an award dated 16.9.2001. The respondent No.1 filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside a portion of the arbitration award and also claimed a relief for payment of Rs.23 lacs. The petitioner also filed an application praying that the application of respondent No.1 filed under Section 34 of the Arbitration Act was not maintainable and therefore, it should be rejected. The District Judge, by the impugned order, has rejected the application of the petitioner, holding that the application filed by respondent No.1 under Section 34 of the Act was maintainable. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition.
The learned counsel for the petitioner submitted that the award could only be set aside on the grounds mentioned in Section 34 of the Act and that the application filed under Section 34 by respondent No.1 did not contain those grounds which are mentioned under Section 34 of the Act. Consequently, the application of the opposite party No.1 was not maintainable and was liable to be rejected. In my view, the submission of the learned counsel for the petitioner is bereft of merit. On this ground itself, the application cannot be treated as not maintainable. The Court, while considering the grounds taken by the opposite party No.1 and will pass orders accordingly.
The learned counsel for the petitioner further submitted that the relief claimed was only for setting aside a portion of the award and that the award cannot be set aside in part. The submission of the learned counsel for the petitioner is, that under Section 34 of the Act, either the whole award is set aside or not. In my view, the submission of the learned counsel for the petitioner is incorrect. The Court is competent to consider as to which part of the award could be set aside under Section 34 of the Act, if it is found to be severeable.
The learned counsel for the petitioner also submitted that in any case the claim of Rs.23 lacs cannot be considered by the Court and that the Court had no power to enhance the award. In my view, the submission of the learned counsel for the petitioner is incorrect. Section 34(4) of the Arbitration Act is a complete answer to the aforesaid submission of the learned counsel for the petitioner. In a motion to set aside the award, the Court could remit the award to the arbitrator to enable him to clear the defect upon which the motion to set it aside was based. If the claim of a party was not considered by the arbitrator, the Court, under section 34(4) of the Act, could remit the matter back to the arbitrator to resume the proceedings and cure the defect pointed out by the party. But, before the Court could remit the matter back to the arbitrator, the claim must be raised before the Court. Consequently, the claim raised by the respondent does not suffer from any error. In view of the aforesaid, this Court does not find any merit in the writ petition and is dismissed.
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