Report No. 176
2.24.1 Copy of the award to be filed in the 'Court' for purposes of record along with original arbitral records and courts to maintain register of awards: Proposed section 31A:
A new section 31A is proposed for the formal filing of copies of purely domestic awards in a Court of law for purposes of record. It is also proposed that the Principal Court of original jurisdiction in the district or the Court of the Principal Judge in a city, alone should be the Courts for purpose of filing of a copy of the award and of the arbitral record. These Courts alone are to maintain a register of awards. Even though under sec. 2(1)(e) the High Court in its original jurisdiction is also included, we do not think that the High Court should receive the copies of the award or the arbitral record nor need it maintain the register.
In cases where the award is passed pursuant to a reference under sec. 11 by the High Court its original jurisdiction, because of the pecuniary value of the claim, the award passed in such a case can be filed in the Principal Courts mentioned above based purely on territorial jurisdiction and not on the basis of pecuniary jurisdiction.
In fact, an 'Explanation' is proposed to added in sec. 31A to say that when an award is passed whether pursuant to a reference by a judicial authority under sec. 8, or by any of the Courts referred in sec. 8A or by the parties or by the High Court or by the Supreme Court under sec. 11 or pursuant to a Fast Track Arbitration, copy of all such awards should be filed in the Principal Courts mentioned above in a district or a city as the case may be.
The reasons for the proposed sec. 31A are as follows. Under the 1940 Act, the award had to be filed by the arbitrators in the 'Court' and the court would scrutinize the award before making it a rule of court. Further, once the award is filed in the court, there is little scope for tinkering with the date of the award or with the body of the award.
Under the 1996 Act, it is stated in sec. 36 that after the expiration of time for making an application to set aside the arbitral award under sec. 34, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil procedure 1908, in the same manner as if it were a decree of the court. It need not be filed in any court at all.
2.24.2 It has been pointed out that there must be some record of the award as originally passed and therefore photocopy of the award signed by the parties should be filed before the 'Court' as defined in section 2(1)(e), (except the High Court in its original jurisdiction) with the arbitrator's initials or signatures on each page. A register of the awards received from arbitrators is to be maintained by the court with a serial number and it must be ensured that all the pages of the award are duly stamped and initialed by the presiding officer of the court or a ministerial officer of the court.
This would ensure the authenticity of awards and avoid any dispute as to the date or contents of the award as passed. The Central Government may make rules as to other aspects to be noted in the register to be maintained by the court. We have proposed provisions in section 42 as also in chapter XI relating to 'Fast Track Arbitration', that invariably the copies of the award shall be filed in the principal courts referred to in section 2 (1) (e).
The awards passed pursuant to reference under section 8 or section 8A or section 11 are under Fast Track Arbitration are all to be filed in the Principal Court under section 2 (1) (e), i.e., even where the reference is made by the High Court under section 11 or by the Supreme Court/High Court under section 8A or by the High Court in Fast Track Arbitration. It is, therefore, proposed to add sec. 31A stating that once the award is made, a copy thereof signed and duly authenticated on each page by each of the arbitrators shall be filed in the Court. Here, four types of awards have to be kept in mind:-
(i) Awards may be passed pursuant to references under section 8 made by judicial authorities.
(ii) Awards may be passed pursuant to references under section 11 by the Supreme Court or High Court.
(iii) Awards may be passed by arbitrators appointed by parties under section 16 without intervention of court.
(iv) Awards may be passed pursuant to references made by any court under the proposed section 8A.
(v) Fast Tack Awards made under section 43A All these awards are to be filed before the 'Court' defined under section 2(1)(e) except the High Court in its original jurisdiction.
2.24.3 It is also proposed that the arbitral record is also to be filed in the court, together with a list of the records. The provisions applicable to the court record in respect of preservation of records will be applicable to the arbitral record so filed. The expression 'arbitral' record is proposed to be explained by way of 'Explanation II' proposed to be introduced below section 31A(1):-
"Explanation II: An arbitral record shall include the pleadings in the claim filed by the parties, the documentary and oral evidence, if any recorded, pleadings in interlocutory applications and orders thereon, the proceedings of the arbitral tribunal and all other papers relating to arbitral proceedings."
Therefore, it would be advantageous if all the awards are filed, for purposes of record in the Court under sec.2(1)(e) i.e. the Principal District Court or the court of the Principal Judge, City Civil Court (but not the High Court in its original jurisdiction) within territorial whose jurisdiction a suit would have been filed, if the subject matter were a suit. This applies to all awards passed pursuant to an agreement or after appointment of arbitrators by the High Court or the Supreme Court under Section 11 or under Section 8 or under Section 8A.