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In the case of Emkay Global Financial Services vs. Girdhar Sondhi, the Supreme Court Bench headed by Justice RF Nariman and Justice Indu Malhotra, held that an application for setting aside an arbitral award will not require any other thing beyond the record that was placed before the arbitrator. However if there are matters not contained in such records but pertinent to the issued arising out of section 34 (2) (a) of the Arbitration and Conciliation Act they may be brought before the court by way of affidavits filed by both the parties. The Learner Justices held that cross examination is not essential as the affidavits would be greatly sufficient for the purpose.
Looking at the background, in an arbitration agreement between a stock exchange broker and his client there was a jurisdiction clause giving the powers of jurisdiction only to the courts of Mumbai. The clients claim got rejected in the arbitration. A petition was filed u der section 34 in the Delhi district court that got rejected due to a lack o jurisdiction. The High Court further referred the case to the parties and also gave the opportunity of cross examination. This Judgment was contended by the broker who approached the Supreme Court claiming that section 34 lays down that a party can furnish proof only by affidavits not contained in the arbitration proceedings.
The Bench referred to a previous Delhi High Court decision in Sandeep Kumar vs Dr. Ashok Hans which particularly held that there is no requirement under section 34 for the parties to lead any kind of evidence. The case of Fiza Developers and Inter Trade Pvt Ltd vs AMCI Pvt Ltd was also relied upon. The case judgment had held that oral evidence was not required under section 34 when the record would show that petitioners already had the notice relating to appointment.
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