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(iv)The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on ARBITRATION No. 21508/2016 (421/2016) Page 7 of 35 pages M/s Vinay Industries Ltd. Vs. Ram Sabhagh Singh & Anr.

matters beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

ARBITRATION No. 21508/2016 (421/2016) Page 12 of 35 pages M/s Vinay Industries Ltd. Vs. Ram Sabhagh Singh & Anr.

21. Fundamentally, where an arbitration agreement provides for arbitration by an arbitrator, the courts should normally give effect to the provisions of the arbitration agreement and it is only when there is material to create a reasonable apprehension about the independence or impartiality of such person that the Chief Justice or his designate may, after recording reasons for not following the agreed procedure and appoint an independent arbitrator in accordance with Section 11(8) of the Act. In Northern Railway Administration, Ministry of Railway, New Delhi Vs. Patel Engineering Co. Ltd. (2008) 10 SCC 240 a three judges Bench of the Apex Court observed that the appointment of the named arbitrator shall be the first choice and ignoring such person and nominating an independent arbitrator shall be an exception to be resorted for valid reasons.

ARBITRATION No. 21508/2016 (421/2016) Page 16 of 35 pages M/s Vinay Industries Ltd. Vs. Ram Sabhagh Singh & Anr. However, in cases governed after the Amendment Act, 2015 if an arbitration clause finds foul with the amended provisions the appointment of the arbitrator even if apparently in conformity with the arbitration clause in the agreement, it would be illegal and the court would be within its powers to appoint such arbitrator as may be permissible.

29. It was further observed that in view of the Section 12 Amendment Act, 2015 it is manifest that the main purpose for amending the provision was to provide for neutrality of arbitrators. As per Sub­ section (5) of Section 12 notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject­matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator.

44. In P. R. Shah, Shares & Stock Brokers (P) Limited vs. B. H. H. Securities (P) Limited (2012) 1 SCC 594, Hon'ble Apex Court has observed that a court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or re­appreciating the evidence. The challenged to an award is limited to the grounds specified in Section 34 (2) of the Act,1996.

45. In Associate Builders vs. Delhi Development Authority in Civil Appeal No. 10531/2014, decided on 25 November, 2014 the Apex court referred to S.34 (2) (v) which provides for setting aside of arbitral award on the ground that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the ARBITRATION No. 21508/2016 (421/2016) Page 23 of 35 pages M/s Vinay Industries Ltd. Vs. Ram Sabhagh Singh & Anr. parties, unless such agreement was in conflict with a provision of the Act. It takes in its radar Chapter VI of Part­1 of the Act. A reference was made to Section 28 (1) (a) in Chapter VI, which provided that the contravention of the Arbitration Act itself would be regarded as patently illegality. It was explained that under sub­section (1) (a) of Section 28 there is a mandate to the arbitral tribunal to decide the dispute in accordance with the substantive law for the time being in force in India which would include the Indian Contract Act, the Transfer of Property Act and other such laws in force. If the award is passed in violation of the provisions of the Transfer of Property Act or in violation of the Indian Contract Act, it could be set aside. Similarly, under sub­section (3), arbitral tribunal is directed to decide the dispute in accordance with the terms of the contract and also after taking into account the usage of the trade applicable to the transaction. The conclusion is that if the award is contrary to the substantive provisions of law or the provisions of the Act or against the terms of the contract, it would be patently illegal, which could be interfered under Section 34. However, such failure of procedure should be patent affecting the rights of the parties. The aforesaid interpretation of the clause (v) was held to be in conformity with the settled principle of law that the procedural law cannot fail to provide relief when substantive law gives the right. Principle is ­ there cannot be any wrong without a remedy as was observed by Hon'ble Apex Court In M.V. Elisabeth & others vs. Harwan Investment & Trading Pvt. Ltd. [1993 Supp. (2) SCC 433] that ARBITRATION No. 21508/2016 (421/2016) Page 24 of 35 pages M/s Vinay Industries Ltd. Vs. Ram Sabhagh Singh & Anr. where substantive law demands justice for the party aggrieved and the statute has not provided the remedy, it is the duty of the Court to devise procedure by drawing analogy from other systems of law and practice. Similarly, in Dhanna Lal vs. Kalawatibai and others [(2002) 6 SCC 16] Hon'ble Apex Court observed that wrong must not be left unredeemed and right not left unenforced.