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Jacki Kauko Bhai Sraf (Supra), In the matter of : CPN Associate Construction (Supra) and In the matter of : DRM Infrastructure Pvt. Ltd. (Supra), the learned Senior Advocate submits that these judgments AP-COM/88/2024 A.R.J. 2026:CHC-OS:159 were rendered at Section 34 stage where the Court has to proceed with detailed enquiry while assessing an award within the scope of Section 34 of the Arbitration Act, whereas the instant application filed under Section 36 (3) of the Act. The scope of this application is totally different from Section 34 of the Act. Hence, the ratios decided in the said judgments would not apply in the instant application. Inasmuch as, some of the judgments were of pre 2021 amendment of the Arbitration Act, when the second proviso to Section 36 (3) was introduced with a retrospective effect from October 23, 2015.

Decision:

125. After considering the rival contentions of the parties and upon perusal of the materials on record, at the outset, it appears to this Court that the scope of the provisions under sub-Section (2) to Section 36 and Section 34 of the Arbitration Act is required to be discussed in brief. Section 34 of the Arbitration Act provides for setting aside of arbitral award on the grounds mentioned therein. The law is also well settled that for scrutiny of an arbitral award a deeper enquiry by the Court is permitted under Section 34 of the Act, of course, subject to the restrictions imposed upon the Court within the meaning and scope of Section 34. Section 36 provides for enforcement of the award. Sub-Section (2), inter alia, provides that during pendency of a proceeding under Section 34, the filing of such an application shall not by itself render the award unenforceable, unless the Court grants an order of stay of operation of the said arbitral award in accordance with the provisions of sub-Section (3), and a separate application made for that purpose. Sub-Section (3) to Section 36 provides upon filing of an application under Sub-Section (2), the Court may, subject to such conditions as it may deem fit, grant stay of operation of the award for reasons to be recorded in writing. The first proviso to sub-Section (3) provides that the Court shall while considering the application for grant of stay in the case of arbitral award for payment of money, have due regard to the provisions of the Code of Civil Procedure, 1908 while staying the operation of the money award. The second proviso was introduced by virtue of an amendment of 2021 but AP-COM/88/2024 A.R.J. 2026:CHC-OS:159 with effect from October 23, 2025, providing further that where the Court is satisfied a prima facie case is made out that, inter alia, making of an award was induced or affected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 of the Award.

131. It is already discussed above that the scope and jurisdiction of Court in exercise of its power under Section 34 of the Arbitration Act is much wider than under Section 36 of the Arbitration Act. While adjudicating an application filed under sub-Section (2) to Section 36 of the Arbitration Act and the plea taken in support of unconditional stay of the award in the light of sub-Section (3) to Section 36 of the Arbitration Act, the scope of enquiry by the Court is very limited and the Court cannot go for a deeper and detail enquiry. Accordingly, the ratio of the judgments rendered under Section 34 of the Arbitration Act would not apply in the facts and circumstances of the instant case. In the matter of : Microsoft Corporation (Supra), In the matter of : Vinod Jain and Ors. (Supra), In the matter of : Venture Global (Supra), In the matter of : D. Koshla (Supra), In the matter of :

145. In the matter of: Ecopark India Paper Cup Pvt. Ltd.(Supra), the challenge was from an interim award passed under Section 31(6) of the Arbitration Act and not from a final award. Inasmuch as, the said judgment was of 2018 prior to the 2021 amendment in the Arbitration Act, by virtue whereof, Section 36(3) has been engrafted in the Act. Therefore, the ratio laid down in the said judgment shall not apply in the facts and circumstances of the instant case.

146. In the matter of : Pam Developments (Supra) and Toyo Engineering (Supra), both the judgments were on applicability of principle under Order XLI of Code of Civil Procedure in relation with Section 36(3) of the Arbitration Act. The judgments were delivered pre 2021, before the amendment of the Arbitration Act was introduced. To exercise the discretion of the Court under the said directory provision of Order XLI of Code of Civil Procedure while adjudicating an application under Section 36(2) of the AP-COM/88/2024 A.R.J. 2026:CHC-OS:159 Arbitration Act, the Court must find out a clear prima facie case within the statutory framework. The expression 'bias' is not there under Section 36 of the Arbitration Act. Detail enquiry which is otherwise permitted under Section 34 of the Arbitration Act is not permitted under Section 36(2) of the Arbitration Act. Therefore, there cannot be any mandate on a Section 36 Court to grant an unconditional stay of award in the facts and circumstances of every instant case. Thus, the ratio of the said judgment shall not apply in the facts and circumstances of the instant case.