Content Provider | Supreme Court of India |
---|---|
e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | II 16 and 34 (2)(a)(v) 5 JO Arbitration and Conciliation Act 1996-Ss. 4 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Disposed Off |
Headnote | Arbitration and Conciliation Act, 1996-Ss. 4, 5, 10, 11, 16 and 34 (2)(a)(v)-Composition of Arbitral Tribunal-Right to objection-Waiving of- Dispute-Arbitration by two Arbitrators-Award-Challenge before High Court on the ground that there could not be an even member of Arbitrators under the Act-Objection not raised before the Arbitral Tribunal-High Court setting aside the award validity of-Held, if a party does not object to the composition of the tribunal before the Arbitral Tribunal itself within the prescribed time, there is deemed waiving of right to objection-Award can be set aside under section 34 (2)(a)(v) of the Act only if the Arbitral Tribunal or procedure were not in accordance with the agreement between the parties.The issued involved in the present appeal is whether a mandatory provision of the Arbitration and conciliation Act, 1996 can be waived by the parties. Appellant and the respondents agreed to resolve their disputes through two Arbitrators and an Award was passed. Subsequently, respondents filed an application in the High Court for setting aside the award on the ground that under the Act there could not be an even number of Arbitrators. Single judge of the High Court set aside the award. Appeal before the Division Bench of the High Court was dismissed. Hence the present appeal. Since the question involved was an important question of law, the matter was referred to a three judge Bench. On behalf of appellant it was contended that if an objection to the composition of the Arbitral Tribunal was not raised before the Arbitral Tribunal itself within the prescribed time laid down under S. 16(2), then the party could be deemed to have waived its right to object by virtue of s.4; that s.34(2)(a)(v) of the Act did not permit the setting aside of an award on the ground of composition of the Arbitral Tribunal if the composition was in accordance with the agreement of the parties and since in the instant case the composition was in accordance with the agreement of the parties, the award could not be set aside. On behalf of respondents it was contended that an agreement which permits the parties to appoint an even number of arbitrators would be contrary to the mandatory provisions of S.10 of the Act which could not be derogated; that s.16 did not provide for any challenge to the composition of the Arbitral Tribunal and since an invalid composition of the Arbitral Tribunal goes to the root of the jurisdiction, High Court was justified in setting aside the Award. |
Judge | Hon'ble Mr. Justice S.N. Variava |
Neutral Citation | 2002 INSC 90 |
Petitioner | Naryan Prasad Lohia |
Respondent | Nikunj Kumar Lohia And Ors. |
SCR | [2002] 1 S.C.R. 1136 |
Judgement Date | 2002-02-20 |
Case Number | 1382 |
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