Case Summary

Hindustan Construction Co. vs Union of India

Fact:

The petitioner(s) begin their argue that Section 36 of the Act has been formulated on the line of Article 36 of UNCITRAL Model laws and the interpretation of the same in terms of awarding ‘automatic- stay’ on enforcement of arbitral tribunal has to be revisited in the light of recommendations made by 246th Law Commission Report through Arbitration and Conciliation (Amendment), Act, 2015. Moreover, they cite the Justice B.N. Srikrishna Committee’s Report on ‘Review the Institutionalization of Arbitration Mechanism in India’ to drive the 2015 Amendment Act. The said report recommended that amendments introduced via Amendment Act, 2015, be made applicable to only those arbitral proceedings that have commenced after 23.10.2015, excluding the ongoing court proceedings that have commenced after 23.10.15 but emanate from arbitral proceedings before 23.10.2015.

Further, Shri Nakul Dewan cited the ’two bites of a cherry’ (‘cherry doctrine’[1]) and argued that Section 36 was intended to provide a stronger regime wherein an award passed by virtue of arbitration proceedings can be immediately implemented. While the fail-safe net has also been provided wherein discretionary powers have been conferred upon the Court to put a stay on the enforcement of such arbitral award, the practice of ‘automatic-stay’ on such an award under Section 34, 1996 Act, is arbitrary. The Court began by discussed the UNCITRAL Model of law as a basis for the formulation of arbitration laws in India [2] and accepted that ‘cherry doctrine’ is not applicable. The Court also cited its earlier judgments [3] has mistakenly interpreted the language of Section 34, Arbitration Act, 1996 as mandatory thereby putting the requirement of ‘stay’ on the enforcement of arbitration awards in a compulsory category in case: [4] a) expiry of time to make an application or b) the application against the enforcement of such award has been refused. The Court refused to accept such a reading of the provision calling it an ‘implied prohibition,’ thus taking away the discretionary powers of vested in the Court.

Question of law

The appellant entered into a contract with the Union of India for the construction of certain railway bridges. On disputes arising, the matter went to arbitration and then to an umpire. After the umpire had made his award, the appellant filed an application under s. 14 of the Indian Arbitration Act 1940.

The main question that has been argued on behalf of the appellant is that the document in question is a signed copy of the 845 awards within the meaning of those words in s. 14(2), and therefore, further proceedings should have been taken under s. 17 of the Act. Now the relevant part of s. 14 (2) reads thus:

“(2) The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court. Cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court…” Therefore, when a court issued a notice to the arbitrators or umpires, they must file in Court either the award in original or a signed copy thereof as directed by the Court. It is not in dispute that in the present case, the original award has not been filed. The dispute is whether the document filed is a signed copy of the award. The main contention on behalf of the appellant is that the document is a signed copy of the award within the meaning of those words in s. 14(2), and thus should have been acted upon by the Court. On the other hand, it is contended on behalf of the respondent that what has been filed is a certified copy of the award and not a signed copy thereof, and therefore it cannot be acted upon. The High Court has accepted the contention of the respondent, and all that it has said in that behalf is that it is clear from a perusal of the award that it is not a signed copy of the award, but it is certified as a correct copy of the award dated the 27th May 1961. Unfortunately, the High Court has not considered what exactly the words “signed copy of the award” means, and it is to this problem that we must now turn.

Held

When a document is an accurate or true and full reproduction of the original, it would be a copy. In the present case, what was produced by the umpire was a truly accurate and full reproduction of the original. It was, therefore, a copy of the original. [845 H] It was also a signed copy because it bore the signature of the umpire. A document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears, it does not matter what the form of an instrument is, or in what part of it the signature occurs. The fact that the umpire wrote the words “certified as correct copy of the award dated the 27th May 1961” above his signature did not make any difference, and the document was still a signed copy of the award. If anything, these words showed that the document filed was a true copy of the award. [846 D, H; 847 a-B] Mohesh Lal v. Busunt Kumaree, I.L.R. (1881) VI Cal. 340, relied on upon.

Submitted By: Astha Chaurasia

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