Arbitration In IndiaRemission of proceedings only before passing of Award

Harkisandas Tulsidas Pabari and Anr. v. Rajendra Anandrao Acharya and Ors.

Court – Bombay High Court

Citation – Arbitration Appeal No. 62 of 2007 and 63 of 2007

Date – 22.07.2025

The Hon’ble Bombay High Court has held that remission of proceedings to the same Arbitrator under Section 33 and 34(4) can only be done before passing of Award.

The Court held,

“19. So far as the first aspect of absence of authorisation to the learned Arbitrator is concerned, this Court had specifically considered the issue of remand of proceedings in paragraph 7 of the order dated 28 September 1998. After observing that the Award was set aside, this Court examined the possibility of remitting back the proceedings to the same arbitrator. However, this Court has held that the proceedings could not be remitted back to the same arbitrator as procedure for remand is envisaged only under provisions of Sections 33 and 34(a) (sic) of the Arbitration Act and recourse for the said provisions could be made only before passing of award. Thus, the suggestion for remitting back the proceedings to the same arbitrator was thus not accepted by this Court in order dated 28 September 1998. Remission back of the proceedings to the same arbitrator cannot be done after the award was set aside. Therefore this Court granted liberty to the parties to move afresh, meaning thereby to commence the proceedings afresh. This could obviously be done by appointing the same arbitrator by serving notice to the Respondents under Section 21 of the Act. However, in the present case, Appellants never requested the Respondents for commencing the arbitral proceedings afresh by suggesting the name of the same arbitrator. If such suggestion was made and if the Respondents were not to object to the said suggestion, the same learned arbitrator could conduct the fresh arbitration proceedings. However, there was fundamental flaw on the part of the Appellants and the arbitrator in comprehending the order passed by this Court. Both erroneously presumed that this Court had remitted back the arbitral proceedings to the same arbitrator. This presumption was drawn by the arbitrator on twin reasons of (i) this Court not changing the arbitrator and (ii) this Court sending back the original records to the arbitrator. Both the reasonings adopted by the learned arbitrator are flawed.”

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