TaxTMI 
TaxTMI 
2015 (5) TMI 1249
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....since the contract could not be concluded in due time allegedly because of the lapses of the principal employer, a dispute arose and the matter was referred to the Arbitral Tribunal, under clause 64(1)(i) (page-23) of the agreement. The arbitration panel gave their award on 13.07.2012 (Annexure-II) allowing five out of eleven claims of the contractor while disallowing the others and eventually Rs. 20,10,878.96 was directed to be released by the Railways within 90 days or else interest @7% on the awarded amount was ordered to be paid by the Arbitration Tribunal. 3. The aggrieved contractor then challenged the arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Arbitration Act") in....
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....l award. Alternately, Mr. Sarkar argues that the Arbitration Tribunal may be directed to make an additional arbitral award under sub-section (5) of Section 33 of the Arbitration Act. 6. Before proceeding any further with this matter, it may be appropriate to note the vital distinction in the Arbitration Act, 1940 (hereinafter referred to as the "Old Act") and the current Arbitration Act enacted in the year 1996. For this we may usefully refer to the opinion of Justice V. Ramasubramanian of the Madras High Court in M/s. M.M.T.C. Vs. Vicnivass Agency & anr. reported in (2009)1 MLJ 199: "................................. 22. To summarise, there are at least six distinguishing features between Section 16(1) of the 1940 Act ....
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....amely that there should be an application under Section 34(1) of the new Act and that a request should emanate from a party and the Court considers it appropriate to invoke the power under Section 34(4) of the new Act. (d) While the purpose of an enquiry under Section 16(1) of the old Act, was to have a fresh award upon reconsideration of the previous award, the purpose of the enquiry under Section 34(4) of the new Act, is to eliminate the grounds for setting aside the arbitral award. This is why Section 16(1) of the old Act, was not linked to the provisions of Section 30 of the old Act, under which an award can be set aside on specified grounds. In contrast, the power under Section 34(4) of the new Act, is linked to the grounds fo....
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.... arbitration agreement or when so directed by the court. Section 17 mandates the court to pronounce a judgment in terms of the award only if it sees no cause to remit or set aside the award. Neither section 16 nor section 17 speaks of an application by a party. ..................................." 7. As can be gathered from the above distinguishing features of the current Arbitration Act with the Old Act, it is apparent that the power of remanding the matter for reconsideration by the arbitrator panel, as was available under Section 16(1) of the Old Act is now drastically curtailed. However, an additional award can be permitted to be made upon application of a party, under Section 34 of the current Arbitration Act. Similarly whe....
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....he expertise of the technical member in the field to which the Tribunal relates. On the other hand, when Tribunals are constituted by technical members and also judicial members, the presence of the judicial member will ensure that the Tribunal functions with due compliance with the basic principles of natural justice such as fair hearing and reasoned order. The judicial member can ensure impartiality, fairness and reasonableness in consideration. The Apex Court also opined the presence of a judicial member improves the quality of adjudication and the decision making process. 10. Under clause 64(3)(a)(ii) governing the present contract, the Arbitral Tribunal is required to be constituted by serving or retired railway officers but there i....