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(xxiv) Union of India and Others vs. Tarsem Singh and Another, in C.A.No.7064 of 2019, dated 19.09.2019 of the Hon'ble Supreme Court, striking down provision of Section 3J of the NH Act;

(xxv) The Chairman, TNHB and Another vs. P.Karuppa Konar and Others, 2007-4-L.W.981 (Madras) for the proposition that the requisitioning body becomes the absolute owner of the lands after the issuance of notification by the Government and it being a requisitioning body, is entitled to challenge the orders passed by the Arbitrator or by the Court; and (xxvi) McDermott International Inc. vs. Burn Standard Co. Ltd. and Others, (2006) 11 SCC 181. This decision was relied on to explain the legal scope of the challenge to an award of an Arbitrator.

54.To answer the legal question raised by the learned counsels for the appellant, we need to examine the various decisions cited at the bar and as to how the law, more particularly, Section 34 of the Arbitration Act was interpreted by the Hon'ble Apex Court and the High Courts.

55.In the case of Eastern Trading Company, the matter was referred for arbitration pursuant to an agreement entered into between the parties in respect of demand and supply of goods. The award was challenged under Section 34 contending that the Arbitrator should have rejected the claim as it is barred by limitation. The petition was dismissed by the learned Single Bench of this Court, against which, an http://www.judis.nic.in and 225 of 2019 etc., batch appeal was preferred to the Division Bench. After taking note of the decision in the cases of McDermott International Inc. (supra) and ISPAT Engineering (supra), it was held that if anyone of the contingencies as pointed out by the Hon'ble Supreme Court is found in the award passed by the Arbitrator, the Court exercising jurisdiction under Section 34 of the Arbitration Act can set aside the award but it cannot take the role of the Arbitrator and pass an award. Similar is the view taken in the cases of Hindustan Steel Works Construction Limited (supra), Mahadevi G.Hiremath (supra), MBL Infrastructure Ltd. (supra), A.S.A. Transport (supra) and Puri Construction P. Ltd. (supra).

56.We shall refer to the decision in the case of McDermott International Inc. as the law laid down by the Hon'ble Supreme Court prior to the said decision have been elaborately dealt with and the Court has analysed the scope of Section 34 of the Arbitration Act. Before we go into the legal scope of challenge to the award as discussed and held in the case of McDermott International Inc., it would be beneficial to take note of the factual situation in the said case which travelled up to http://www.judis.nic.in and 225 of 2019 etc., batch the Hon'ble Supreme Court. During 1974, oil was discovered in Bombay High Region and the Government of India through ONGC developed a plan for rapid development of off-shore oil and gas production. With that objective, ONGC appointed contracts and one such contractor was Burn Standard Company Limited (BSCL), the respondent before the Hon'ble Supreme Court. The contract contained an arbitration clause, wherein the parties consciously agreed that should there be any dispute or difference between the BSCL and the buyer in regard to any matter connected with BSCL relating to or arising out of the main contract(s), which may involve McDermott's performance or affect McDermott's interest under the sub-contract, etc. Further the parties agreed that all disputes and differences in respect of any matter relating to or arising out of or in connection with the execution or construction of the sub- contract is not settled mutually by negotiation shall be referred to arbitration under the Indian Arbitration Act, 1940, as amended from time to time by appointing some agency acceptable to both parties as arbitrators and if no agency is found acceptable to both parties, then by constituting a Board of Arbitration consisting of three arbitrators. The venue of arbitration shall be at New Delhi and the decision of the http://www.judis.nic.in and 225 of 2019 etc., batch arbitrators or the umpire, as the case may be, shall be final and binding on both parties. As disputes and differences arose between McDermott and BSCL, McDermott invoked the arbitration clause by a legal notice. The Hon'ble Retired Chief Justice of India had been appointed as the sole arbitrator to resolve the disputes and differences. The Arbitral Tribunal passed a partial award, additional award and a final award. An application was filed by BSCL under Section 34 of the Arbitration Act for setting aside the final award among other things contending that there is no jurisdiction to make a partial award which is not postulated under the 1996 Act as an award in piecemeal is impermissible in law. McDermott resisted the application contending that no case has been made out for setting aside the award. Ultimately, the matter travelled to the Hon'ble Supreme Court. From paragraph 45 of the judgment, the Hon'ble Supreme Court proceeds to decide the legal scope of challenge to the award under the 1996 Act. It was pointed out that the 1996 Act makes a radical departure from the 1940 Act; it makes provision for the supervisory role of Courts for the review of the arbitral award only to ensure fairness; intervention of the Court is envisaged in circumstances like fraud or bias by the arbitrators, violation of natural justice, etc.; the http://www.judis.nic.in and 225 of 2019 etc., batch Court cannot correct errors of the arbitrators; it can only quash the award leaving the parties free to begin the arbitration again, if it is desired; the scheme of the provision aims to keep the supervisory role of the Court at minimum level and this can be justified as parties to the agreement make conscious decision to exclude the Court's jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it.

59.In Hydro Electric Power Supply Co. Ltd. vs. Union of India. [(2003) 4 SCC 172], the award was modified by the Hon'ble Supreme Court. In Hindustan Zinc Limited vs. Friends Coal Carbonisation [(2006) 4 SCC 445] pertaining to a contract for sale and supply metallurgical coke, the award passed by the arbitrator was http://www.judis.nic.in and 225 of 2019 etc., batch modified by the District Court in a petition under Section 34, an appeal was filed under Section 37 before the High Court which was allowed upholding the award in its entirety and the same was challenged before the Hon'ble Supreme Court and on account of the understanding reached between the parties, the Hon'ble Supreme Court allowed the appeal, set aside the judgment of the High Court and restored the judgment of the trial court and in the said case, the Hon'ble Supreme Court did not specifically addressed the issue as to whether the Court has power under Section 34 to modify the award. However, the modified award as done by the Trial Court was affirmed. After referring to the decision in McDermot International Inc., the Court held that the observations made in paragraph 52 of the judgment were not given any answer to a pointed question as to whether the Court has power under Section 34 to modify and revise or vary an award. In the case of Krishna Bhagya Jala Nigam Ltd. vs. G.Harischandra Reddy [AIR 2007 SC 817], the Hon'ble Supreme Court modified the award. The decision of the High Court of Bombay in the case on Union of India vs. Artic India [(2007) 4 Arb.L.R. 524 (Bom)] and the judgment of the High Court of Delhi in the case of Union of India vs. Modern http://www.judis.nic.in and 225 of 2019 etc., batch Laminators [(2008) Arb.L.R. 489 (Del)] were also noticed and it was held that from the various decisions of the Hon'ble Supreme Court and that of the Bombay and Delhi High Courts, it is seen that judicial trend appears to favour an interpretation that would read into Section 34, a power to modify or revise or vary an award. Further it was pointed out that except one observation found in the decision of the Hon'ble Supreme Court in McDermott International Inc., all the decisions of the Hon'ble Supreme Court have either modified the awards or approved the modification of the awards done by the Courts under Section 34 of the Arbitration Act.