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82. However, if a restrictive interpretation is to be given to Section 34 in the context under discussion, it has to be held that a party to an arbitration agreement cannot challenge an award passed in an arbitral proceeding on Ssangyong Engg. & Construction Co. Ltd. v. NHAI, reported at (2019) 15 SCC 131 Welspun Specialty Solutions Ltd. v. ONGC, reported at (2022) 2 SCC 382 2026:CHC-OS:88 the ground that there was „no award‟ at all under Section 34 of the 1996 Act, since all the grounds of challenge contemplated in the provision refer to "an arbitral award", apparently pre-supposing the existence of an award in the first place, which is challenged. Unfortunately, there is no other provision than Section 34 within the four corners of the 1996 Act for challenging an arbitral award. Section 37 of the said Act, the only other provision of challenge by way of an appeal, does not contemplate a direct challenge to an award at all. Hence, if strictly interpreted on a restrictive premise, the only scope of challenge to an arbitral award on the ground of „no award‟ would be to file a regular civil suit, since a party to an arbitration agreement cannot be left completely remediless against the egregious act of another party to such agreement relying on a non-existent award, as such a vacuum would contravene the fundamental legal principle ubi jus ibi remedium.

97. The learned Arbitrator, in her written reply to the query of the petitioner, categorically mentioned that the original awards are lying with her, thereby negating the possibility of the original award being produced by either of the parties. However, simultaneously, the learned Arbitrator stated that she had returned all documents pertaining to the arbitral proceeding to the parties. In the light of such statement, which has not been challenged by the respondent, it was the incumbent duty of the respondent, which asserts the existence of the awards and relies on the same, to bring forth materials in support of such assertion. It is not for the petitioner to prove the negative 2026:CHC-OS:88 fact to the effect that no arbitral award exists at all. The foundational facts of no arbitral award or documents pertaining to the proceeding being available in the office of the petitioner-Company have been sufficiently pleaded in the Section 34 application, thereby shifting the onus of proving the existence of the awards to the respondent.

99. It remains unexplained as to what prevented the respondent, despite getting opportunity throughout the present proceedings under Section 34 of the 1996 Act and in spite of having even filed a belated application at the hearing of the said proceeding, from disclosing any document directly pertaining to the arbitral proceeding. No copy of any of the minutes of the several sittings of the learned Arbitrator, notice to either of the parties of any of the alleged dates of hearing, receipts in respect of payment of arbitral costs by the respondent to the Arbitrator, pleadings (including the Statement of Claim and/or Defence) of either of the parties, affidavits of evidence (if any), any copy of interlocutory application/opposition filed in the 2026:CHC-OS:88 arbitral proceeding or any documentary evidence produced before the Arbitrator has been brought by the respondent before this Court.

102. However, even proceeding on the premise that such a notice was actually issued, mere issuance of the same does not automatically signify the initiation of an arbitral proceeding pursuant thereto. Although, in law, a notice under Section 21 of the 1996 Act is not merely a precursor to arbitration but is also construed to be the initiation of the arbitral proceeding itself, it is to be shown from the materials on record that such a proceeding actually ensued upon issuance of the notice. A mere notice under Section 21 without a follow-up arbitral proceeding is an empty formality leading nowhere. There may be several circumstances under which arbitration may not happen at all even after the issuance of such notice. For 2026:CHC-OS:88 example, the disputes may be settled amicably, or, upon refusal by the noticee to agree to the arbitrator or to subject itself to arbitration, an application for appointment of arbitrator under Section 11 of the 1996 Act is necessitated, which culminates in a dismissal on the ground of non- arbitrability of the dispute or otherwise, requiring a fresh issuance of notice under Section 21. Again, instead of going for arbitration, the parties may initiate legal action on the disputes before a different forum or court after issuance of a Section 21 notice, or it may even so happen that the party issuing such notice chooses not to pursue its legal remedy on the disputes any further. Hence, there cannot be any foregone conclusion that a Section 21 notice must have led to an arbitral proceeding; rather, it is to be ascertained independently from available materials as to whether an arbitral proceeding actually followed such notice.