REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._____ OF 2010

(Arising out of SLP (Civil) No.9238 of 2010)

Venture Global Engineering ..Appellant(s)

Versus

Satyam Computer Services Ltd. & Another ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. The judgment and order dated 19

th

February, 2010 of

the Division Bench of the High Court of Andhra

Pradesh in Civil Revision No.5712/2009 has been

impugned in this appeal.

1

3. The material facts which are required to be

considered to resolve the controversy in this

appeal, are as follows.

4. The appellant, Venture Global Engineering, having

its principal office in Michigan, USA, entered into

a Shareholders Agreement and a Joint Venture

Agreement on 20

th

October, 1999 with the first

respondent, for establishing a company called Satyam

Venture Engineering Services (hereinafter, “the

second respondent”). As per the terms of the

agreement, the appellant and the first respondent

each held 50 per cent shareholding in the second

respondent.

5. Article VIII of the Shareholders Agreement

contemplates certain ‘events of default’, and in the

event of default, non-defaulting shareholder has the

option to purchase the defaulter’s shares at book

value or cause immediate dissolution and liquidation

of the second respondent.

6. In the year 2000, the second respondent entered into

an agreement with TRW, a manufacturer and supplier

2

of automotive equipments, to provide engineering and

IT services. They agreed to sub-contract the

automotive engineering works to the second

respondent. The first respondent levied US $3 an

hour towards administrative charges. According to

first respondent, they retained US $859,899 from the

TRW receipts. The appellant disputed the same and

alleged that Satyam retained a total of US

$2,188,000, and also alleged concealment and

dereliction of duty as a joint venture partner.

Thus, disputes cropped-up and were referred to

arbitration.

7. The sole arbitrator gave his award on 3

rd

April, 2006

whereby the appellant is to transfer its entire

shareholding in the second respondent to the first

respondent. The first respondent filed a petition

for the recognition and enforcement of the award

before the U.S. District Court, Eastern District

Court of Michigan.

8. On 28

th

April, 2006, the appellant filed a suit (O.S.

No. 80/2006) seeking a declaration to set aside the

award and also prayed for a permanent injunction

3

against the transfer of shares under the arbitral

award, in the Court of Ist Additional Chief Judge,

City Civil Court, Secundrabad. The Trial Court

dismissed the suit of the appellant on the ground

that a foreign award could not be challenged under

Section 34 of the Arbitration & Conciliation Act,

1996 (herein after, ABC, 1996).

9. The appellant appealed against the order of the

Trial Court before the High Court of Andhra Pradesh

at Hyderabad, and the said appeal was also dismissed

on 27

th

February, 2007.

10.Thereafter, the appellant filed a special leave

petition before this Court and this Court, vide its

order dated 15

th

May, 2007, issued notice to the

respondents and passed an interim order restraining

the transfer of shares pending the disposal of the

special leave petition.

11.This Court then finally heard the matter and allowed

the special leave petition vide its Judgment and

Order in Venture Global Engineering vs. Satyam

Computer Services Ltd. and another (2008) 4 SCC 190

4

and held that a foreign award could be challenged

under Section 34 of ABC, 1996. In the light of this

finding, this Court remanded the case to the trial

court and directed that the parties were to maintain

status quo with respect to transfer of shares. Thus,

the case of the appellant was transferred to the

IInd Additional Chief Judge, City Civil Court,

Hyderabad.

12.Meanwhile, on 7

th

January, 2009, Mr. Ramalinga Raju,

Chairman and founder of the first respondent

confessed that the balance sheets of the first

respondent had been fraudulently inflated to the

tune of Rs.7,080/- crores. As a result, Price

Waterhouse Cooper (PWC), auditors of the first

respondent, declared that the financial statements

could no longer be considered accurate or reliable.

13.In the light of these developments regarding the

first respondent, the appellant filed an interim

application before the Trial Court (I.A. No.

1331/2009 dated 12

th

June, 2009) to bring certain

facts on record and also filed additional pleadings

5

in respect of the same under Order VIII Rule 9 of

the Civil Procedure Code, 1908.

14.The Trial Court, vide its Order dated 3

rd

November,

2009, allowed the application of the appellant. The

first respondent challenged the said order of the

Trial Court by filing a civil revision before the

High Court.

15.The High Court, vide its order dated 19

th

February,

2010, allowed the revision petition of the first

respondent. The High Court, inter alia, held that a

reading of Section 34(1) and (3) of the ABC, 1996

indicates that a party could only set aside the

arbitral award if an application for the same is

made within a period of 3 months (extendable by

another 30 days) from the date of making the award;

whereas in the present case the new grounds of

challenge are sought to be brought after the

limitation period.

16.Further, the High Court also held that an

application under Order VIII Rule 9 of the Civil

Procedure Code, 1908 for bringing additional

pleadings on record would not lie. The High Court

6

held, relying on Rule 12(1) of the Andhra Pradesh

Arbitration Rules, 2000, that Rule VIII of Civil

Procedure Code is not applicable, so a petition for

additional pleading is not maintainable under Order

VIII of Civil Procedure Code. Therefore, the High

Court did not allow the appellant to file additional

pleadings on record.

17.Aggrieved by the impugned judgment and order of the

High Court, the appellant has approached this Court

by way of filing a special leave petition.

18.In the course of argument before this Court, Mr.

Harish N. Salve, learned senior counsel appearing

for the respondents did not make any attempt to

defend the order of the High Court on the question

of limitation as the learned counsel was obviously

conscious of the decision of this Court in the State

of Maharashtra Vs. M/s Hindustan Construction

Company Ltd. – AIR 2010 SC 1299.

19.This Court In M/s. Hindustan Construction (supra)

made it clear that it cannot be the intention of the

Legislature to shut out amendments, as a result of

7

which incorporation of relevant materials in a

pending setting aside proceeding is prevented.

20.In M/s. Hindustan Construction (supra) this Court

considered the provision in Section 34(2)(b) of ABC,

1996 and while considering the ambit of the

expression “the Court finds that” in Section

34(2)(b), this Court opined that where application

under Section 34 has been made within the prescribed

time, leave to amend grounds, in such an

application, if the peculiar circumstances of the

case and the interest of justice so warrant, can be

granted.

21.In saying so, this Court in paragraph 25 of the

report, relied on the decisions of this Court in the

case of L.J. Leach and Company Ltd. and another Vs.

Jardine Skinner and Co. – AIR 1957 SC 357 and

Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil

and ors. – AIR 1957 SC 363 and held where it is

required in the interest of justice, the Court

always has the power to grant leave to amend and

this power to grant an amendment is not affected

under Section 34.

8

22.We are of the opinion that in dealing with a prayer

for amendment, Courts normally prefer substance to

form and techniques and the interest of justice is

one of most relevant considerations. Therefore, if a

party is entitled to amend its pleadings, having

regard to the justice of the case, the right of the

party to amend cannot be defeated just because a

wrong Section or a wrong provision has been quoted

in the amendment petition. The approach of the High

Court in this case, in rejecting the appellant’s

prayer for amendment, inter alia, on the ground that

a wrong provision has been quoted in the amendment

petition, is obviously a very hyper technical one.

Mr. Salve rightly did not even try to defend the

impugned order on the aforesaid technical ground

adopted by the High Court.

23.Mr. Salve, learned senior counsel argued on a

different line. The learned counsel submitted that

the grounds which are sought to be incorporated by

way of amendment are not relevant and do not come

within the concept of public policy which has been

explained in the Explanation to Section 34 of ABC,

9

1996. The learned counsel took us through the award

and tried to demonstrate that the facts which are

sought to be brought on record, even if they are

accepted to be true, have no bearing on the material

facts on which the award is based. The learned

counsel urged that the Explanation under Section 34

of ABC, 1996 has to be strictly construed and the

expression “in the making of the award” must be

confined to mean any fraud committed before the

arbitrator in the course of the arbitral

proceedings. According to the learned counsel that

expression will not take within its sweep anything

which happened after the making of the award. In

other words the learned counsel repeatedly urged

that the expression “making of the award” must be

confined to facts anterior to the delivery of the

award and not anything which happened subsequent to

that.

24.Mr. K.K. Venugopal, learned senior counsel appearing

for the appellant and contradicting the aforesaid

contentions submitted that facts which are sought to

be incorporated by amendment are only those which

have been disclosed by the first respondent on its

10

own. Prior to such disclosure, they were not in

public domain and naturally could not be included in

the original petition to set aside the award.

Without disclosure of those facts by the first

respondent, the appellant could not have known them.

It is submitted that in any event those facts are

relevant for the purpose of being put on record by

amendment.

25.Learned counsel further submitted that the award has

been obtained by the first respondent by suppressing

those facts, which on disclosure show a clear

connection with the facts in issue, in the award.

In such a case fraud as is understood in civil law,

has been committed in the making of the award. It

was further submitted that the interest of justice

in such a case would demand that amendment should be

allowed.

26.These are basically the rival contentions of the

parties.

27. Now let us consider the facts which the appellant

wanted to incorporate by way of amendment in the

11

petition for additional pleading filed in the Court

of Additional Chief Judge, City Civil Court at

Hyderabad (I.A. No. 1331/2009). Those facts are:

a)On or after 7

th

January, 2009, a letter was written

by B. Ramalinga Raju, CEO of respondent no. 1 to

the Board of respondent no. 1, wherein Mr. Raju

confessed that the financial statements and books

of accounts of respondent no. 1 were exaggerated

and overstated. Along with the application for

additional pleading, relevant paragraphs of Raju’s

statements have been enclosed.

b)On 7.1.2009, it was reported that the Securities

and Exchange Board of India (SEBI) directed an

investigation in the entire matter. Along with the

additional pleadings were annexed extracts from

press clippings about the said investigation by

SEBI.

c)On 8.1.2009, Government of India directed an

inspection of the financial statements and books

of 8 subsidiaries of first respondent. Such

inspection was to be conducted in accordance with

section 209A of the Companies Act, and the second

respondent is one of those subsidiaries in respect

of which inspection was thus ordered.

12

d)On 13.1.2009, Price Waterhouse Coopers (PWC),

which acted as the statutory auditor of the first

respondent, wrote to the Board of the first

respondent that in the light of statements made by

Mr. Raju, the financial statements for the period

from June 2000 to 30

th

September, 2008 could no

longer be considered reliable. Extracts from the

said opinion of PwC are also enclosed with the

additional pleading.

e)On 13.1.2009, the Government of India directed the

Serious Fraud Investigation Office (SFIO) to

investigate the matter. SFIO is a multi-functional

investigating agency representing the Ministry of

Home Affairs, Enforcement Directorate and the

Intelligence Department.

f)Such order by Government of India came on the

basis of a report from the Registrar of Companies,

Hyderabad.

g)On 21.1.2009, Mr. Raju reportedly admitted

diversion of funds from the first respondent,

which was widely published in newspapers across

India. Mr. Raju confessed diversion of funds of

the first respondent to two real estate firms held

by his family and others.

13

h)On being questioned by criminal investigation

department of the Andhra Pradesh police, Mr. Raju

reportedly admitted to using Satyam (respondent

no.1) money for buying prime land in and around

Hyderabad and Mr. Raju admitted in answer to

interrogation that funds of the first respondent

were being diverted for the last 4-5 years.

i)It was reported on 25.1.2009, that partners of PWC

(statutory auditors of the first and second

respondent) were arrested for their alleged role

in the misstatement of the accounts of the first

respondent.

j)On 27.1.2009, the Income Tax department reportedly

directed an investigation in the operations of the

first respondent. In this matter the Income Tax

department was making an independent probe about

the alleged fraud of about Rs. 7800 crores in the

first respondent.

k)On 8.2.2009, it was reported that a confession was

made by PWC before the police that Mr. Raju

employed an elaborate scheme to exaggerate the

accounts of the first respondent.

l)Mr. Talluri Srinivas and S. Gopalakrishnan, two

persons associated with PWC, and arrested in

connection with the Satyam scam, admitted to the

14

police that meetings were arranged at the instance

of the first respondent with the motive of

falsifying accounts, and such meetings were

chaired by Mr. Raju himself.

m)On 17.2.2009, Central Bureau of Investigation

(CBI) was asked to probe the Satyam scam.

n)On 22.3.2009, it was reported that the extent of

fraud relating to the first respondent could be

over Rs. 9600 crores.

o)On 5.4.2009, it was reported that the Enforcement

Directorate also directed an investigation in the

matter for alleged money laundering.

p)On 7.4.2009, CBI filed its charge sheet against

several persons, including Mr. Raju, Mr.

Gopalakrishnan and Mr. Talluri.

q)Mr. Gopalakrishnan is alleged to be a partner of

the firm PWC Bangalore.

r)On 13.4.2009, SFIO submitted its report to the

Government of India.

15

s)On 17.4.2009, it was reported in the press that

PwC is guilty of wrong doing in the multi-crore

Satyam scam.

t)On 20.4.2009, SFIO alleged to have found evidence

that the first respondent diverted foreign

earnings even before they reached India. Such

diversion was made to tax havens like Mauritius

before routing it back to Maytas Infrastructure

and other entities owned by Mr. Raju and his

relations.

28.Relying on the aforesaid materials which were sought

to be incorporated by way of amendment, it was urged

by the appellant that the aforesaid materials go to

show that the very basis of the fiduciary duties of

the first respondent to the appellant was breached,

even prior to the Shareholders Agreement between the

parties. The first respondent on concealment of

these facts induced the appellant to enter into an

agreement with it.

29.It appears that the first respondent did not make

available to the appellant verified financial

statements to show the amount of TRW revenue which

was diverted, and the appellant was thus left to

16

assess such amount based on various representations

of the financial statements made by the first

respondent to the appellant. But the facts which the

appellant wanted to bring on record by way of

amendment would show that the representations made

by the first respondent about its financial position

were prima facie unreliable.

30.It was also urged that the valuation of the shares

of the second respondent is fundamentally important

in the decision-making process relating to the

award. Such valuation is based on unreliable

financial statements.

31.Under these circumstances, a prayer was made in the

amendment petition to bring the aforesaid facts on

record in the pending proceeding for setting aside

the award.

32.Learned counsel for the appellants also urged that

in the statement of claim filed by the first

respondent, it has been stated that the first

respondent is a “solvent shareholder” as defined in

the agreement, and on that statement, the first

17

respondent claimed that they have either: (a) the

right of purchasing the shares held by the

appellants, or (b) causing immediate liquidation of

the second respondent.

33.Learned counsel contended that the aforesaid claim

of the first respondent that it is a solvent

shareholder is based on concealment of the facts

stated above. He further submitted that any person,

on a bonafide consideration of the facts stated

above would prima facie form an opinion that the

claim of the respondents as a solvent shareholder is

fraudulent. The award has been obtained by the first

respondent on the basis of such fraudulent claim.

Therefore, in the interest of justice and having

regard to the public policy of India, the High Court

should have allowed the appellant to bring those

facts on record by way of amendment, in the pending

proceeding for setting aside the award.

34.In the context of the aforesaid issues involved in

this appeal, the provision of Section 34 of ABC,

1996, especially explanation to Section

18

34(2)(b)(ii), calls for interpretation by this

court.

35.Section 34 of ABC, 1996, has four sub-sections.

In this case we are not concerned with sub-sections

(3) and (4).

36.Sub-section (1) provides for an application for

setting aside arbitral award. Sub-section (2)(a)

provides for the grounds for setting aside an

arbitral award as grounds (i) to (v).

37.Section 34(2)(b), with which we are concerned here,

provides as follows:

“34.Application for setting aside

arbitral award.-

(1)xxx

(2)xxx

(a)xxx

(b)the Court finds that-

(i)the subject-matter of the

dispute is not capable of

settlement by arbitration under

the law for the time being in

force, or

(ii)the arbitral award is in

conflict with the public policy

of India.

Explanation.-Without prejudice to the

generality of sub-clause (ii) it is

hereby declared, for the avoidance of any

doubt, that an award is in conflict with

19

the public policy of India if the making

of the award was induced or affected by

fraud or corruption or was in violation

of section 75 or section 81.”

38.The explanation is very crucial in the context of

the present case.

39.The concept of public policy, in view of century old

decision of Lord Justice Burrough in Richardson vs.

Mellish (1824-34) All E.R. 258, conjures up to our

mind an equine image of a high and unruly horse. The

consensus of opinion amongst judges is that concept

of public policy is incapable of precise definition.

40.In Central Inland Water Transport Corporation Ltd.

and another vs. Brojo Nath Ganguly and another

reported in AIR 1986 SC 1571 at 1612, this Court

discussed the concept of public policy elaborately

in the context of Section 23 of the Contract Act.

The discussion, however, was not confined to Section

23 of Contract Act alone but was on a general

jurisprudential concept of public policy, and it

referred to the opinion of Lord Denning, where the

Master of Rolls said with characteristic clarity-

“With a good man in the saddle, the unruly horse can

20

be kept in control. It can jump over obstacles.”

(See Enderby Town Football Club Ltd. vs. Football

Association Ltd. – 1971 Chancery Division 591 at

606).

41.A three judge Bench in Renusagar Power Co. Ltd. vs.

General Electric Co. reported in AIR 1994 SC 860,

after referring to Brojo Nath (supra), dealt with

the concept of public policy while construing the

provisions of Foreign Awards (Recognition and

Enforcement) Act, 1961.

42.It may be mentioned in this connection that the

present ABC, 1996 is a consolidating statute and it

has also repealed the aforesaid 1961 Act (Section 85

of ABC, 1996). Therefore, the discussion on public

policy in Renusagar (supra) is of some relevance in

the present context.

43.In Renusagar (supra), after a fairly elaborate

consideration of concept of public policy in various

jurisdictions, this Court came to hold that an award

is considered contrary to public policy if it is

opposed to: (a) fundamental policy of India law, (b)

21

interests of India and (c) justice or morality (See

paragraph 86 on page 888).

44.This concept of public policy, in the realm of

arbitration law, is a rather vexed concept, in the

sense that different countries have different

concepts of public policy. Say for instance, some

countries which do not countenance gambling, an

award arising out of a gambling dispute may be set

aside on the ground that it offends public policy of

the State. But in a country where gambling is

legalized in some form, the award will not offend

public policy. Similarly, a dispute between a

producer of wine and its distributor is arbitrable

in countries which are not governed by a strict

Islamic Code. But a country with such a Code may

hold the award contrary to public policy.

45.In view of such varying standards of public policy

in different countries, an attempt is made to arrive

at a somewhat acceptable standard by construing that

something is opposed to public policy where there is

an excess of jurisdiction and a lack of due process.

(See Redfern and Hunter on International

Arbitration, 5

th

Edition, paragraphs 10-80 to 10-86).

22

46.The concept of public policy in ABC, 1996 as given

in the explanation has virtually adopted the

aforesaid international standard, namely if anything

is found in excess of jurisdiction and depicts a

lack of due process, it will be opposed to public

policy of India. When an award is induced or

affected by fraud or corruption, the same will fall

within the aforesaid grounds of excess of

jurisdiction and a lack of due process. Therefore,

if we may say so, the explanation to Section 34 of

ABC is like ‘a stable man in the saddle’ on the

unruly horse of public policy.

47.It is well known that fraud cannot be put in a

strait jacket and it has a very wide connotation in

legal parlance.

48.In the decision of the House of Lords in Frank

Reddaway and Co. Ltd. vs. George Banham, 1896 Appeal

Cases 199, Lord Macnaghten explained the

multifarious aspects of fraud very lucidly, and

which we quote: “But fraud is infinite in variety;

sometimes it is audacious and unblushing; sometimes

23

it pays a sort of homage to virtue, and then it is

modest and retiring; it would be honesty itself if

it could only afford it. But fraud is fraud all the

same; and it is the fraud, not the manner of it,

which calls for the interposition of the Court.”

(Page 221 of the report).

49.The aforesaid elucidation by the learned Law Lord

has also been accepted in celebrated treaties on

fraud (see Kerr on Fraud and Mistake, 7

th

Edition,

pg. 1). Kerr has also referred to Story’s Equity

Jurisprudence and defined fraud as: “Fraud, in the

contemplation of a civil court of justice, may be

said to include properly all acts, omissions, and

concealments which involve a breach of legal or

equitable duty, trust or confidence, justly reposed,

and are injurious to another, or by which an undue

or unconscientious advantage is taken of another.”

50.In Indian law, namely the Indian Contract Act, the

said common law doctrine of fraud has been

assimilated in Section 17 of the said Act. A very

wide definition of fraud has been given, which is as

under:

24

“17. ‘Fraud’ defined.-‘Fraud’ means and

includes any of the following acts

committed by a party to a contract, or

with his connivance, or by his agent,

with intent to deceive another party

thereto or his agent, or to induce him to

enter into the contract:-

(1) the suggestion, as a fact, of

that which is not true, by one

who does not believe it to be

true;

(2) the active concealment of a fact

by one having knowledge or belief

of the fact;

(3) a promise made without any

intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the

law specially declares to be

fraudulent.

Explanation.-Mere silence as to

facts likely to affect the willingness of

a person to enter into a contract is not

fraud, unless the circumstances of the

case are such that, regard being had to

them, it is the duty of the person

keeping silence to speak, or unless his

silence, is, in itself, equivalent to

speech.

51.Therefore, this Court is unable to accept the

contention of the learned counsel for the respondent

that the expression ‘fraud in the making of the

award’ has to be narrowly construed. This Court

cannot do so primarily because fraud being of

‘infinite variety’ may take many forms, and

secondly, the expression ‘the making of the award’

25

will have to be read in conjunction with whether the

award ‘was induced or affected by fraud’.

52.On such conjoint reading, this Court is unable to

accept the contentions of the learned counsel for

the respondents that facts which surfaced subsequent

to the making of the award, but have a nexus with

the facts constituting the award, are not relevant

to demonstrate that there has been fraud in the

making of the award. Concealment of relevant and

material facts, which should have been disclosed

before the arbitrator, is an act of fraud. If the

argument advanced by the learned counsel for the

respondents is accepted, then a party, who has

suffered an award against another party who has

concealed facts and obtained an award, cannot rely

on facts which have surfaced subsequently even if

those facts have a bearing on the facts constituting

the award. Concealed facts in the very nature of

things surface subsequently. Such a construction

would defeat the principle of due process and would

be opposed to the concept of public policy

incorporated in the explanation.

26

53.In English Arbitration Law, a somewhat similar

provision for challenging an award is contained in

Section 68(2)(g) of the 1996 Arbitration Act, which

reads as follows:

“68(2)(g).- The award being obtained by

fraud or the way in which it was procured

being contrary to public policy.”

54.Commenting on the said provision, Russell (Russell

on Arbitration, 23

rd

Edition) stated that an “award

will be obtained by fraud if the consequence of

deliberate concealment is an award in favour of the

concealing party.” (P. 497, Para 8-100)

55.In Elektrim S.A. vs. Vivendi Universal S.A. and Ors.

(2007) EWHC 11 (Comm), Mr. Justice Aikens held that

the words ‘obtained by fraud’ must refer to an award

being obtained by the fraud of the party to the

arbitration or by the fraud of another to which the

party to the arbitration was a privy. The learned

Judge at page 82 of the report held that “an award

will only be obtained by fraud if the party which

has deliberately concealed the document has, as a

consequence of that concealment, obtained an award

27

in its favour. The party relying on Section 68(2)(g)

must therefore also prove a causative link between

the deliberate concealment of the document and a

decision in the award in favour of the other

successful party.”

56.In Profilati Italia S.R.L. vs. Painewebber Inc. and

Anr. [(2001) 1 Lloyd’s Law Reports 715], while

construing Section 68(2)(g) of the English

Arbitration Act, it has been held that where an

important document which should have been disclosed

has been deliberately withheld resulting in the

party withholding obtaining the award, the Court may

consider that the award was ‘procured’ in a manner

contrary to public policy and such conduct is not

far removed from fraud. (para 19, pg. 720)

57.This Court also holds that the facts concealed must

have a causative link. And if the concealed facts,

disclosed after the passing of the award, have a

causative link with the facts constituting or

inducing the award, such facts are relevant in a

setting aside proceeding and award may be set aside

as affected or induced by fraud.

28

58.The question in this case, is therefore one of

relevance of the materials which the appellant wants

to bring on record by way of amendment in its plea

for setting aside the award.

59.Whether the award will be set aside or not is a

different question and that has to be decided by the

appropriate Court. In this appeal, this Court is

concerned only with the question whether by allowing

the amendment, as prayed for by the appellant, the

Court will allow material facts to be brought on

record in the pending setting aside proceeding.

60.Judging the case from this angle, this Court is of

the opinion that in the interest of justice and

considering the fairness of procedure, the Court

should allow the appellant to bring those materials

on record as those materials are not wholly

irrelevant or they may have a bearing on the

appellant’s plea for setting aside the award.

61.Nothing said in this judgment will be construed as

even remotely expressing any opinion on the legality

29

of the award. That question will be decided by the

Court where setting aside proceeding is pending.

The proceeding for setting aside the award may be

disposed of as early as possible, preferably within

4 months.

62.For the reasons aforesaid, this appeal succeeds. The

order of the High Court is set aside and that of the

court below is restored. No order as to costs.

.....................J.

(P. SATHASIVAM)

.....................J.

(ASOK KUMAR GANGULY)

New Delhi

August 11, 2010

30