Fraud And Its Effects On Arbitral Awards In India

SYNOPSIS

The text will be discussing Fraud and its effects on arbitral awards in India will be the prime nature of this paper. Furthermore, the text will also take a look at the recent changes made by the Supreme Court of India in the Arbitration and Conciliation Act, 1996 to clear the muddied waters surrounding the arbitrability of issues relating to fraud as well as this paper will be focusing on case laws behind this step.

INTRODUCTION

Arbitration has developed as the most favored type of substitute debate goal strategy generally attributable to a flood in business questions and the goal of gatherings to determine them quickly before a private discussion.

Notwithstanding, it has not been invulnerable from disagreeable and disputable issues which are seen occasionally, prompting impressive measures of legal arbitration and postponement in settling. One such issue that has plagued arbitration is whether charges of misrepresentation can be settled under the system of intervention. This issue emerges because the intervention is confined to choosing just the rights in personam (against a specific individual) and rejects rights in rem (influencing different people, for example, matters including violations, marriage, bankruptcy, ending up, testamentary issues, trust1, etc.).

Whereas fraud is an issue which may not exclusively be bury se between the gatherings yet additionally saturates into the domain of public law in specific events. All in all, it has a double trademark, equipped for being chosen as a privilege in personam just as a privilege in rem. The component of 'fraud' goes into the base of the goal of the gatherings to go into a contract. This very characteristic of misrepresentation has prompted a significant problem in the arbitration system, coming about from different perspectives.

As of late, the Supreme Court in Avital Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd. dated 19 August 2020 ("Avitel") had the event to manage this issue. Before talking about the ongoing choice by the Supreme Court, it is imperative to set out the law encompassing arbitrability of fraud.

EVOLUTION ON ARBITRABILITY OF FRAUD

In N. Radhakrishnan v. Maestro Engineers8, ("Radhakrishnan"), which included claims of malpractices in record books and control of records of the partnership firm, the Supreme Court tried to depend on its ruling of Abdul Kadir judgment. At the same time, it held that if any allegations of fraud are raised, it would fundamentally imply that they should be attempted in a courtroom and accordingly, dismissed the application recorded under Section 8 of the Arbitration and Conciliation Act, 1996 (as changed) ("the Arbitration Act").

This simpliciter suit’s dismissal to allude the gatherings to mediation moved the course of this issue. Not exclusively did the Supreme Court ignore its own judgment in Hindustan Petroleum Corp. Ltd. v. Pink City Midway Petroleum’s, and P. Anand Gajapathi Raju v. P.V.G. Raju, yet additionally didn't consider the viewpoint where a gathering can trick the fraud concession to simpliciter charges of misrepresentation. The Court in Radhakrishnan likewise ignored the way that as opposed to Arbitration Act, 1940, the plan of reference under Section 8 of Arbitration Act, 1996 was drastically extraordinary where reference to the intervention was an endless supply of arbitration arrangement.

The choice in Radhakrishnan set the clock in reverse on the methodology qua assertion in India, as it prompted mediation provisions being delivered repetitively and expanded the extension for legal impedance.

SUPREME COURT'S DECISION

As we know that recently, Arbitration and conciliation act was amended with the view of ensuring that stakeholders get an opportunity to seek an unconditional stay of enforcement of arbitral awards where the underlying arbitration agreement or contract or making of the arbitral award are induced by fraud or corruption. The Court held that a dispute is arbitrable except if there are no serious claims of fraud which invalidate the arbitration provision alongside the arrangement, or there are charges of misrepresentation which are not just merely parties, yet affect people in general at large. What may establish such misrepresentation has been to a great extent left to the courts to decide.

The court made an analysis and held that a simple assertion of fraud in a dispute cannot be termed as a ground for nullification of the effect of the arbitration to the dispute. The court also mentioned that if there is a serious assertion of fraud then the court can dismiss the application of the alternative dispute resolution mechanism for the resolution of the dispute between the parties. This practice can be done under section 8 of the Arbitration and Conciliation Act. The serious assertion of fraud in a dispute includes the allegations which make a virtual case of a criminal offense, assertions of forgery, and fabrication of the documents which support the plea of fraud, etc.

The question of the arbitrability of fraud came first into action in the case of Abdul Kadir Shamsuddin Bubere vs Madhav Prabhakar Oak during the period of Arbitration Act, 1940 the supreme court ruled out the arbitration of fraud as it mentions that the disputes which assertion of fraud involves lots of complexities and has hard factual questions involving in it.

The court additionally noticed that the expression, "or to induce him to enter into the contract" specified in Section 17 of the Indian Contract Act, 1972 ("Contract Act") alludes to a circumstance where fraud is said to have been submitted at the phase of going into the contract.

The Apex Court, along these lines, held that a fraud which is practiced outside the extent of Section 17 of the Contract Act for example in the presentation of the agreement, might be administered by the tort of deceit, which would lead to damages, yet not recission of the contract itself.

It was consistently open to a gathering which has been actuated to go into an agreement through misrepresentation or defilement, to record a suit for recission of the said agreement or harms or the two was consistently available.

The Ordinance presently qualifies parties to look for the genuine remaining of arbitral reward at the hour of testing such reward where there has been fraud in the plan of the agreement and additionally arbitration arrangement. To the extent the request of a court regarding the arrangement of the Ordinance is concerned, it is likewise significant not to dismiss the way that under Section 34 of the Arbitration Act, the court is generally not needed to look at the benefits of the understanding given in the reward by the authority if it arrives at a resolution that such a translation was sensibly possible.

Even in situations where two perspectives are conceivable, the court can't meddle with the conceivable view taken by the mediator upheld by his thinking. As the Ordinance utilizes the words "at first sight", it very well might be helpful to perceive how courts have deciphered. The Hon'ble Supreme Court of India in Martin Burn v. R.N. Banerjee held that: "An at first sight case doesn't mean a case demonstrated as far as possible yet a case which can be supposed to be set up if the proof which is driven on the side of the equivalent were accepted."

Amendment of Section 36.—In Section 36 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the principal Act), in sub-section (3), after the proviso, the following shall be inserted and shall be deemed to have been inserted with effect from 23rd day of October 2015, namely:

"Provided further that where the Court is satisfied that a prima facie case is made out, -

(a) that the arbitration agreement or contract which is the basis of the award; or

(b) the making of the award was induced or affected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 to the award.".

(Explanation. —For the removal of doubts, it is hereby clarified that the above proviso shall apply to all court cases arising out of or about arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced before or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015.)

CONCLUSION

Even though the judgment in the Ayyasamy case had a significant task to carry out in the field of cases including the assurance of arbitrability of misrepresentation, the problem rotating around the issue actually waited. This has all the earmarks of being generally because the judgment in Radhakrishnan was not overruled and kept on being vigorously depended upon by the gatherings opposing the reference of questions to assertion on a simple claim of fraud.

The non-selection of the suggestion of the Law Commission Report to present sub-area in Section 16 of the Arbitration has left it to the courts to apply the test while managing the applications documented under the arrangements of the Arbitration Act, at whatever point confronted with protection from the arbitrability of the question based on the charges of extortion. Regardless, the presentation of such an arrangement would have been repulsive in situations where the charges of misrepresentation have 'public flavor', which makes such questions non-agreeable to discretion. Also, that the proposed arrangement was - by all appearances, dark and would have released a different line of the case.

The Supreme Court, in the Avital case, has nullified the precedential estimation of the Radhakrishnan case and has put forth genuine attempts through its decisions in Ayyasamy and Rashid Raza to clarify the arbitrability of fraud.