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(2009) 1 SCC 303 in support of his contention that an arbitrator has to be appointed in accordance with the procedure as agreed between the parties.

27. The learned counsel further contended that the principles of res judicata were not applicable as the award rejecting the claims made by GE Shipping had been set aside and, thus, the disputes between the parties had not been finally adjudicated. The learned counsel also joined issues on whether the Court had the power to remit an award under Section 34 of the Act. He submitted that once the Court has decided to set aside the award under Section 34 of the Act, it would have no power to pass further directions to remand the matter to the Arbitral Tribunal. He submitted that the decisions in the case of IVRCL Infrastructures & Projects Ltd (supra) and Videsh Sanchar Nigam Ltd (supra) could not be considered as authorities for the proposition that once an award had been set aside, the arbitration agreement would stand exhausted in respect of the disputes, which were subject matter of the award. He submitted that the same would be contrary to the decision of the Supreme Court in Mcdermott International Inc. v. Burn Standard Corporation Ltd.: (2006) 11 SCC

FAO(OS) 23/2009 had noticed several conflicting decisions with regard to the aforesaid issue and following the principle laid down by the Supreme Court in Mcdermott International Inc. (supra) held that "the power to modify, vary or remit the award does not exist under Section 34 of the Act".

Thus, it is now no longer open for the petitioner to contend that since this Court did not remit the award under Section 34 of the Act, the disputes therein could not be referred to a de novo arbitration.

48. Notwithstanding the issue whether a Court has the power to remit the award under Section 34 of the Act, the fact is that this Court had by a judgment dated 9th May, 2012 set aside the award rejecting GE Shipping's claim but had not remitted the matter. Thus the claims of GE Shipping remained to be finally adjudicated. Admittedly, the parties had agreed to resolve the disputes arising out of the Charter Party by arbitration. Thus, it would not be open for SAIL to avoid resolution of such disputes through arbitration. At this stage, it is necessary to refer to the following observations of the Supreme Court in Mcdermott International Inc. (supra) whereby the Supreme Court had held as under:-

49. A plain reading of the aforesaid passage also clearly indicates that once an award has been set aside, the parties would be free to begin the arbitration once again. Thus, in my view, the contention that GE Shipping could not initiate the arbitration after the decision of this Court under Section 34 of the Act, cannot be accepted. Mr Ganguli sought to suggest that the observation made by Supreme Court in Mcdermott International Inc. (supra) was a "stray observation" and was not determinative of the issue at hand. This contention is also unacceptable. First and foremost, the observations of the Supreme Court are relevant to the decision rendered by it; secondly, in Puri Construction Pvt. Ltd. (supra) a division bench of this Court followed the principles laid down by the Supreme Court in Mcdermott International Inc. (supra) while interpreting the provisions of section 34 of the Act.