What are the power of the civil court under Arbitration Act 1940 when arbitration is without intervention of the court? Please Explain

(1) Introduction

Arbitration Act has provided three classes of arbitration. These classes are arbitration without intervention of court, arbitration with intervention of court where no suit is pending, and arbitration in suits. In arbitration without intervention of court, court possesses some powers, which it can exercise in certain circumstances:

(2) Powers Of Civil Court When Arbitration Is Without Intervention Of Court

Followings are powers of civil court when arbitration is without intervention of court:

(i) Power in case of insolvency

(ii) Power for appointment of arbitrator or umpire arbitrator

(iii) Power in case of appointment of sole by party

(iv) Power to remove arbitrator or umpire

(v) Power in case of removal of one or more arbitrators

(vi) Power in case of removal of sole arbitrator or all arbitrators

(vii) Power where auhtority of arbitrator or arbitrators or umpire is revoked

(viii) Power to modify award

(ix) Power to remit award

(x) Power to set aside award

(xi) Power to pronounce judgment

(xii) Power to pass interim orders

(xiii) Power to supersede agreement

 

(i) Power In Case Of Insolvency

In case of insolvency, court possesses power to order for referring of matter in question to arbitration in accordance with arbitration agreement

(ii) Power For Appointment Of Arbitrator Or Umpire

In following circumstances, court possesses power to appoint arbitrator or umpire:

(a) Appointment after giving of requisite notice

(b) Removal of arbitrator or umpire

(c) Revocation of authority of arbitrator or umpire

 

(a) Appointment After Giving Of Requisite Notice

If appointment is not made within fifteen clear days after service of requisite notice by any party to arbitration agreement, court can appoint an arbitrator or arbitrators or umpire.

(b) Removal Of Arbitrator Or Umpire

When court removes umpire, who has not entered on reference, or one or more arbitrators, it can appoint persons to fill vacancies.

(c) Revocation Of Authority Of Arbitrator Or Umpire

When authority of an arbitrator or arbitrators or an umpire is revoked by leave of court or when court removes an umpire, who has entered on reference, or when court removes a sole arbitrator or all the arbitrators, court can appoint a person to act as sole arbitrator in place of person or persons, who are displaced.

(iii) Power In Case Of Appointment Of Sole Arbitrator By Party

When some party to arbitration agreement appoints sole arbitrator under Clause (b) of Section No. 9 of Arbitration Act, court has power to set aside this appointment of of sole arbitrator

(iv) Power To Remove Arbitrator Or Umpire

Court possesses power to remove arbitrator or umpire, who fails to use all reasonable dispatch in entering on and proceeding with reference and making an award. Even court also has power to remove arbitrator or umpire, who has misconducted himself/herself or legal proceedings

(v) Power In Case Of Removal Of One Or More Arbitrators

If court removes an umpire, who has not entered on reference, or one or more arbitrators, but not all arbitrators and any party to arbitration agreement files application, court can appoint persons to fill the vacancies

(vi) Power In Case Of Removal Of Sole Arbitrator Or All Arbitrators

When court removes a sole arbitrator or all the arbitrators and any party to arbitration agreement files application, court can appoint a person to act as sole arbitrator in place of that person, who has been displaced or in place of those persons, who have been displaced.

(vii) Power Where Auhtority Of Arbitrator Or Arbitrators Or Umpire Is Revoked

When authority of arbitrator or arbitrators or umpire is revoked by leave of Court, court has power to appoint a person to act as sole arbitrator in place of displaced person or persons or court can order for ceasing of arbitration agreement to have effect with respect to referred difference.

(viii) Power To Modify Award

In following circumstance, court possesses  power to modify or correct award:

(a) Matter, which has not been referred to arbitration

(b) Imperfection in form

(c) Obvious error

(d) Clerical mistakes or error

 

(a) Matter, Which Has Not Been Referred To Arbitration

Court can modify or correct award when it appears that a part of award is upon a matter, which has not been referred to arbitration, and such part can be separated from other part and does not affect decision on referred matter

(b) Imperfection In Form

Court can modify or correct an award if award is imperfect in form.

(c) Obvious Error

Court can modify or correct an award when award contains any obvious error, which can be amended without affecting decision on referred matter.

(d) Clerical Mistakes Or Error

Court can modify or correct an award if award contains a clerical mistake or error, which arises from an accidental slip or omission.

(ix) Power To Remit Of Award

Following points are important for power of court to remit award:

(a) Grounds for remission of award

(b) Fixing & extension of time

 

(a) Grounds For Remission Of Award

Followings are ground on which court can remit award or any matter, which has been referred to arbitration:

(a-i) When matter, which has been referred, has remained undetermined

(a-ii) Determination of matter, which has not been referred

(a-iii) Indefinite award

(a-iv) Objection to legality of award

 

(a-i) When Matter, Which Has Been Referred, Has Remained Undetermined

Court can remit award or any matter, which has been referred to arbitration, when award has left undetermined any of those matters, which have been referred to arbitration

(a-ii) Determination Of Matter, Which Has Not Been Referred

Court can remit award or any matter, which has been referred to arbitration if award determines any matter, which has not been referred to arbitration and such matter cannot be separated without affecting determination of those matters, which have been referred to arbitration.

(a-iii) Indefinite Award

Court can remit award when award is so indefinite that it is incapable of execution.

(a-iv) Objection To Legality Of Award

Court can remit award if an objection to legality of award is apparent upon the fact of it.

(b) Fixing & Extension Of Time

If award is remitted to arbitrator or umpire, court is to fix that time within which arbitrator or umpire is to submit his/her decision to court. However, this fixed time can be any time extended by subsequent order of court.

(x) Power To Set Aside Award

In following circumstances, court has power to set aside award:

(a) Misconduct of arbitrator or umpire

(b) Misconduct in arbitration proceedings

(c) Making of award after supersession of arbitration

(d) Making of award after arbitration proceedings become invalid

(e) Improper obtaining of award

(f) Invalid award

 

(a) Misconduct Of Arbitrator Or Umpire

Court can set aside award when arbitrator or umpire has misconducted himself/herself..

(b) Misconduct In Arbitration Proceedings

Court can set aside award if arbitrator or umpire has misconducted arbitration proceedings.

(c) Making Of Award After Supersession Of Arbitration

Court can set aside award when court has already ordered to supersede arbitration

(d) Making Of Award After Arbitration Proceedings Become Invalid

Court can set aside award if arbitration proceedings have already become invalid under. Section No. 35 of Arbitration Act

(e) Improper Obtaining Of Award

Court can set aside award when award is improperly procured.

(f) Invalid Award

Court can set aside award if award is otherwise invalid.

(xi) Power To Pronounce Judgment

Following points are important for explanation of power of court to pronounce judgment in terms of award:

(a) Judgment

(b) Decree

 

(a) Judgment

In either of following two cases, court is to pronounce judgment in terms of award:

(a-i) Expiration of time

(a-ii) Refusal of application

 

(a-i) Expiration Of Time

Court is to proceed to pronounce judgment according to award when court sees no cause to remit award or any of those matters, which have been referred to arbitration, for reconsideration or when court sees no cause to set aside award and time for making an application to set aside award has expired

(a-ii) Refusal Of Application

Court is to proceed to pronounce judgment according to award if court sees no cause to remit award or any of those matters, which have been referred to arbitration, for reconsideration or if court sees no cause to set aside award and application for setting aside award has been made, but court has refused such application.

(D) Decree

Upon pronouncement of this judgment, decree is to follow.

(xii) Power To Pass Interim Orders

Following points are important for explanation of power of court to pass interim orders:

(a) Passing of necessary interim orders

(b) Passing of further necessary & just orders

 

(a) Passing Of Necessary Interim Orders

If court is satisfied by affidavit or otherwise that a party has taken or is about to take steps to defeat, delay or obstruct execution of any decree that is passed upon award or that speedy execution of award is just and necessary, it can pass those interim orders, which it deems necessary.

(b) Passing Of Further Necessary & Just Orders

When any person against whom such interim orders have been passed shows cause against such orders, court can hear parties and can pass those further orders, which it deems necessary and just.

(xiii) Power To Supersede Arbitration

When award has been remitted and it has become void because arbitrator or umpire has failed to reconsider it and submit his/her decision within fixed time or when award has been set aside, court can supersede reference and can order that arbitration agreement shall cease to have effect with respect to referred difference.

(3) Conclusion

To conclude, it can be stated that court is to decide about existence or validity of arbitration agreement or award or is to determine effect of arbitration agreement or award when any party to an arbitration agreement or any person, who claims under him/her, files application to court to challenge existence or validity of arbitration agreement or award or to have effect of arbitration agreement or award determined. Even court can set down this application for hearing on other evidence, and it can pass such orders for discovery and particulars as it may do in a suit when it deems it just and expedient.

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