I-PAY CLEARING SERVICES PRIVATE LIMITEDversusICICI BANK LIMITED

                         [2022] 2 S.C.R. 893



        I-PAY CLEARING SERVICES PRIVATE LIMITED
                                  v.
                      ICICI BANK LIMITED
                     (Civil Appeal No. 7 of 2022)
                         JANUARY 03, 2022
    [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
        Arbitration and Conciliation Act, 1996 – s.34(4) – Arbitral
award passed by sole arbitrator pursuant to dispute between parties
being referred to arbitration u/s.8 over claims made by appellant –
Petition filed by respondent u/s.34(1) for setting aside the award –
In the same petition, Notice of Motion moved by appellant for
remitting the matter to Sole Arbitrator u/s.34(4) – The Arbitrator
had framed five points for determination and point no.1 was,
“Whether the contract was illegally and abruptly terminated by the
respondent?” – High Court held that unless and until a finding was
recorded on point no.1 first, the Arbitrator should not have
proceeded to record findings on the claims made by appellant, as
such, the Arbitrator committed jurisdictional error – High Court
held that the defect in the award was not curable and accordingly
dismissed the Notice of motion taken out by appellant u/s.34(4) –
Propriety – Held: Proper – Merely because an application is filed
u/s.34(4) by a party, it is not always obligatory on the part of the
Court to remit the matter to Arbitral Tribunal – Discretionary power
conferred u/s.34(4), is to be exercised where there is inadequate
reasoning or to fill up the gaps in the reasoning, in support of the
findings which are already recorded in the award – Under guise of
additional reasons and filling up the gaps in the reasoning, no award
can be remitted to the Arbitrator, where there are no findings on the
contentious issues in the award – A harmonious reading of ss.31,
34(1), 34(2A) and 34(4), make it clear that in appropriate cases,
on request made by a party, Court can give an opportunity to the
arbitrator to resume the arbitral proceedings for giving reasons or
to fill up the gaps in the reasoning in support of a finding, which is
already rendered in the award – But at the same time, when it prima
facie appears that there is a patent illegality in the award itself, by
not recording a finding on a contentious issue, in such cases, Court

                                 893
894            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A     may not accede to the request of a party for giving an opportunity
      to the Arbitral Tribunal to resume the arbitral proceedings.
            Judgment / Order – ‘finding’ and ‘reasons’ – Difference
      between – Held: Finding is a decision on an issue whereas reasons
      are the links between the materials on which certain conclusions
B     are based and the actual conclusions.
            Dismissing the appeal, the Court
            HELD: 1. From a reading of Section 34(4) of the Arbitration
      and Conciliation Act, 1996, it is clear that on receipt of an
C     application under sub section (1), in appropriate cases on a
      request by a party, Court may adjourn the proceedings for a period
      determined by it in the order to give the Arbitral Tribunal an
      opportunity to resume the arbitral proceedings or to take such
      other action as in the opinion of Arbitral Tribunal, will eliminate
      the grounds for setting aside the arbitral award. [Para 17][904-
D     B-D]
             2. When it is the specific case of the respondent that there
      is no finding at all, on point no.1 viz. “whether the contract was
      illegally and abruptly terminated by the respondent?”, remission
      under Section 34(4) of the Act, is not permissible. Section 34(4)
E
      of the Act, can be resorted to record reasons on the finding already
      given in the award or to fill up the gaps in the reasoning of the
      award. There is a difference between ‘finding’ and ‘reasons’.
      Finding is a decision on an issue whereas reasons are the links
      between the materials on which certain conclusions are based
F     and the actual conclusions. In absence of any finding on point
      no.1, as pleaded by the respondent and further, it is their case
      that relevant material produced before the Arbitrator to prove
      ‘accord and satisfaction’ between the parties, is not considered,
      and the same amounts to patent illegality, such aspects are to
      be considered by the Court itself. It cannot be said that it is a
G
      case where additional reasons are to be given or gaps in the
      reasoning, in absence of a finding on point no.1 viz. “whether
      the contract was illegally and abruptly terminated by the
      respondent?” [Para 20][905-H; 906-A-D]

H
  I-PAY CLEARING SERVICES PRIVATE LIMITED v. ICICI BANK                   895
                        LIMITED

       3. Section 34(4) of the Act itself makes it clear that it is the   A
discretion vested with the Court for remitting the matter to
Arbitral Tribunal to give an opportunity to resume the proceedings
or not. The words “where it is appropriate” itself indicate that it
is the discretion to be exercised by the Court, to remit the matter
when requested by a party. When application is filed under Section
                                                                          B
34(4) of the Act, the same is to be considered keeping in mind
the grounds raised in the application under Section 34(1) of the
Act by the party, who has questioned the award of the Arbitral
Tribunal and the grounds raised in the application filed under
Section 34(4) of the Act and the reply thereto. Merely because
an application is filed under Section 34(4) of the Act by a party, it     C
is not always obligatory on the part of the Court to remit the
matter to Arbitral Tribunal. The discretionary power conferred
under Section 34(4) of the Act, is to be exercised where there is
inadequate reasoning or to fill up the gaps in the reasoning, in
support of the findings which are already recorded in the award.
                                                                          D
Under guise of additional reasons and filling up the gaps in the
reasoning, no award can be remitted to the Arbitrator, where there
are no findings on the contentious issues in the award. If there
are no findings on the contentious issues in the award or if any
findings are recorded ignoring the material evidence on record,
the same are acceptable grounds for setting aside the award itself.       E
Under guise of either additional reasons or filling up the gaps in
the reasoning, the power conferred on the Court cannot be
relegated to the Arbitrator. In absence of any finding on
contentious issue, no amount of reasons can cure the defect in
the award. A harmonious reading of Section 31, 34(1), 34(2A)
                                                                          F
and 34(4) of the Arbitration and Conciliation Act, 1996, make it
clear that in appropriate cases, on the request made by a party,
Court can give an opportunity to the arbitrator to resume the
arbitral proceedings for giving reasons or to fill up the gaps in
the reasoning in support of a finding, which is already rendered
in the award. But at the same time, when it prima facie appears           G
that there is a patent illegality in the award itself, by not recording
a finding on a contentious issue, in such cases, Court may not
accede to the request of a party for giving an opportunity to the


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896             SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A     Arbitral Tribunal to resume the arbitral proceedings. Further, as
      rightly contended by the respondent, that on the plea of ‘accord
      and satisfaction’ on further consideration of evidence, which is
      ignored earlier, even if the arbitral tribunal wants to consciously
      hold that there was ‘accord and satisfaction’ between the parties,
      it cannot do so by altering the award itself, which he has already
B
      passed. [Para 21][906-E-H; 907-A-E]
              Kinnari Mullick and Anr. v. Ghanshyam Das Damani
              (2018) 11 SCC 328; Dyna Technologies Pvt. Ltd. v.
              Crompton Greaves Ltd. (2019) SCC ONLINE SC 1656
              and Som Datt Builders Limited v. State of Kerala (2009)
C             10 SCC 259 : [2009] 14 SCR 611 – distinguished.
              AKN & Anr. v. ALC & Ors. (2015) SGCA 63 [Decision
              of Supreme Court of Appeals] – distinguished.
              Income Tax Officer, A Ward, Sitapur v. Murlidhar
D             Bhagwan Das AIR 1965 SC 342 : [1964] SCR 411 and
              J. Ashoka v. University of Agricultural Sciences and
              Ors. (2017) 2 SCC 609 : [2016] 11 SCR 81 – relied
              on.
              Permasteelisa Pacific Holdings Ltd. v. Hyundai
E             Engineering & Construction Co. Ltd. (2005) SGHC 33
              [Decision of Supreme Court High Court] – referred
              to.
                              Case Law Reference
      (2018) 11 SCC 328                distinguished          Para 12
F
      [2009] 14 SCR 611                distinguished          Para 12
      [1964] SCR 411                   relied on              Para 15
      [2016] 11 SCR 81                 relied on              Para 20
              CIVIL APPELLATE JURISDICTION: Civil Appeal No.7 of
G     2022.
            From the Judgment and Order dated 16.07.2019 of the High Court
      of Judicature at Bombay in Commercial Notice of Motion No.1549 of
      2019 in Commercial Arbitration Petition No.190 of 2018.

H
  I-PAY CLEARING SERVICES PRIVATE LIMITED v. ICICI BANK                       897
                        LIMITED

      Dr. Abhishek Manu Singhvi, Nakul Dewan, Sr. Advs., Prithu Garg,         A
Ms. Harimohana N., Ms. Supragya, Ms. Ashima Chauhan, Ms. Nooren
Sarna, Advs. for the Appellant.
      K. V. Vishwanathan, Sr. Adv., Sumit Goel, Ms. Sonal Gupta, Ms.
Sreeparna Basak, Raghav Bansal, R. Venkataraman, Chanakya Dwivedi,
M/s Parekh & Co., Advs. for the Respondent.                                   B
      The Judgment of the Court was delivered by
      R. SUBHASH REDDY, J.
      1. Leave granted.
      2. This appeal is filed, aggrieved by the order dated 16.07.2019        C
passed by the High Court of Judicature at Bombay, in Commercial Notice
of Motion No.1549 of 2019 in Commercial Arbitration Petition No.190
of 2018.
      3. In the Commercial Arbitration Petition No.190 of 2018, filed
under Section 34 of the Arbitration and Conciliation Act, 1996 (for short     D
‘the Act’), the respondent–ICICI Bank has challenged the award dated
13.11.2017, of the learned Sole Arbitrator. By the aforesaid award, learned
Arbitrator directed the respondent-ICICI Bank as under:-
      “a) The respondent (ICICI Bank) is ordered and directed to pay
      to the claimant (I-pay) an amount of Rs.50,00,00,000/- (Rupees          E
      Fifty Crores) together with interest thereon to be calculated at
      the rate of 18% per annum as from the date of award till payment
      or realization, whichever is earlier;
      b) The respondent (ICICI Bank) is ordered and directed to pay to
      the claimant (I-pay) Rs.50,000/- (Rupees Fifty Thousand) as cost        F
      on the application under Section 16 made before this Arbitral
      Tribunal.”
       4. In the petition, filed by the respondent-ICICI Bank under Section
34(1) of the Act, it has taken out Notice of Motion No.550 of 2018
seeking interim order to stay the effect, operation, implementation and       G
execution of the award dated 13.11.2017, passed by the learned
Arbitrator. In the same petition, the appellant/I-Pay has taken out Notion
of Motion No.1549 of 2019, under Section 34(4) of the Act, seeking
directions to adjourn the proceedings for a period of three months or
such other time as may be determined by the Court, and direct the learned
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898             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A     Arbitrator to issue appropriate directions/ instructions / additional reasons
      and / or to take such necessary and appropriate action. The High Court
      by a common order, has passed the conditional order in the Notice of
      Motion taken out by the respondent and dismissed the Notice of Motion
      No.1549 of 2019, taken out by the appellant herein, under Section 34(4)
      of the Act. Aggrieved by the order of dismissal, dismissing the Notice of
B
      Motion No.1549 of 2019 filed under Section 34(4) of the Act, this Appeal
      is filed.
             5. The appellant is a Private Limited Company incorporated under
      Companies Act, 1956 and is in the business of providing card
      personalization, transaction and reconciliation management for Smart
C     Card based loyalty programs, for which they have an operations facility
      at Mumbai, with operational hubs in various cities. The respondent–
      ICICI Bank is a company incorporated under the Companies Act, 1956,
      is licensed under Banking Regulations Act, 1949 and carries on the
      business of providing banking facilities, retail financial assistance and
D     related activities. The HPCL (Hindustan Petroleum Corporation Limited)
      which was originally impleaded as Defendent No.2 in the Suit, is a Public
      Sector Company, which is engaged in refining and selling petroleum
      products through their retail outlets all over India.
             6. It is the case of the appellant that it has entered into an
E     agreement with the respondent on 04.11.2002 to provide technology and
      manage the operations and processing of the Smart Card based loyalty
      programs for HPCL. It was for HPCL, which was to improve fuel sales
      at their retail outlets. The appellant was required to develop various
      software application packages for management of Smart Card based
      loyalty programs. The said agreement was followed by another
F     agreement dated 04.02.2003, as per which, the appellant was to develop
      a software for postpaid Smart Card Loyalty Program akin to a Credit
      Card under the name “Drive Smart Software”. It is the case of the
      appellant that to further expand their customer base, the respondent
      herein, requested the appellant to also develop a “Drive Track Fleet
G     Card” management solution for the fleet industry and requested by letter
      dated 10.12.2003 to treat it as an extension for the Service Provider
      Agreement and appointed the appellant for that purpose and it was named
      as “Drive Track Program”.
             7. It is the grievance of the appellant that in view of sudden move
H     by the Respondent herein, in abruptly terminating the Service Provider
  I-PAY CLEARING SERVICES PRIVATE LIMITED v. ICICI BANK                       899
             LIMITED [R. SUBHASH REDDY, J. ]

Agreement dated 04.11.2002, it has suffered losses of over Rs.50 crores,      A
on account of loss of jobs of its employees, losses on account of employee
retrenchment compensation, etc. It is also their case that on account of
sudden termination of the agreement all its operations were paralyzed.
The appellant made a total claim of Rs.95 crores against the respondent.
At first instance, a suit was filed in O.S. No.1094 of 2012 on its Original
                                                                              B
Civil Jurisdiction in the High Court of Judicature at Bombay. As there
was a clause in the Agreement for arbitration, the High Court has referred
the dispute to arbitration under Section 8 of the Act by appointing Mr.
Justice R.G. Sindhakar (Retd.) as a Sole Arbitrator for resolving the
dispute between the parties.
       8. Mr.Justice R.G.Sindhakar (Retd.), who was appointed as Sole         C
Arbitrator, has passed award dated 13.11.2017, directing the respondent
herein, to pay to the appellant – claimant an amount of Rs.50,00,00,000/
- (Rupees Fifty Crores) together with interest @18% per annum from
the date of award till payment and further directed to pay an amount of
Rs.50,000/- (Rupees Fifty Thousand) towards the costs.                        D
       9. Aggrieved by the award of learned Sole Arbitrator, the
respondent–ICICI Bank has filed application under Section 34(1) of the
Act for setting aside the award. In the said application, it is the case of
the respondent that there was accord and satisfaction between the parties
and the contractual obligations between the parties was closed mutually       E
and amicably. Reliance is placed on the letter dated 01.06.2010, which
was signed by both the parties recording the terms of closure of the
contract entered between the parties and other communications. The
award of the learned Arbitrator was mainly questioned on the ground
that it suffers from patent illegality, inasmuch as there is no finding
recorded in the award to show that the respondent-ICICI Bank has              F
illegally and abruptly terminated the contract. The learned Arbitrator
has framed five points for determination and Point No.1 was, “Whether
the contract was illegally and abruptly terminated by the
respondent?”. The main ground in the application filed under Section
34(1) of the Act by the Respondent, is that the learned Arbitrator without    G
recording any finding on Point No.1, has awarded Rs.50 crores to the
appellant/I-Pay. It is pleaded in the application that the award of the
Arbitrator does not reveal the exact nature of the purported breach and
the date of alleged termination. It is the case of the respondent that
without addressing the vital issue viz. whether there was an illegal and
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900             SUPREME COURT REPORTS                             [2022] 2 S.C.R.


A     abrupt termination of the contract or not, as pleaded, the learned Arbitrator
      has allowed the claim to the extent of Rs.50 crores, as such, the same is
      patently illegal and erroneous.
              10. In the arbitration petition filed by the respondent, the appellant/
      I-Pay has taken out Notice of Motion under Section 34(4) of the Act, for
B     adjourning the proceedings for a period of three months by directing the
      learned Arbitrator to issue appropriate directions/ instructions / additional
      reasons and / or to take such necessary and appropriate action. In the
      impugned order, the High Court has prima facie found that unless and
      until a finding is recorded on point no.1 first, the learned Arbitrator could
      not have proceeded to record findings on the claims made by the appellant,
C     as such, the learned Arbitrator has committed jurisdictional error.
            The High Court was of the view that the defect in the award is
      not curable, as such, there is no merit in the application filed by the
      appellant under Section 34(4) of the Act and dismissed the same.

D           11. We have heard Dr. Abhishek Manu Singhvi and Mr. Nakul
      Dewan, learned Senior Counsels appearing for the appellant/I-Pay and
      Mr. K.V.Vishwanathan, learned Senior Counsel appearing for the
      respondent–ICICI Bank.
             12. By impugned order, the Notice of Motion moved by the
E     appellant for remitting the matter to the Sole Arbitrator under Section
      34(4) of the Act, has been rejected. It is the case of the appellant that
      though the Arbitrator has awarded compensation/damages in view of
      the case of the appellant that the contract between the parties was illegally
      and abruptly terminated by the respondent, but he has not recorded
      detailed reasons on the said point. On the other hand, it is the case of the
F     respondent, that there was full accord and satisfaction between the
      parties, as such, appellant is not entitled for any compensation/damages,
      as claimed for. To prove the case that there was ‘accord and satisfaction’
      between the parties, the respondent has filed certain communications
      between the parties including letter dated 01.06.2010. It is the contention
G     of Dr.Abhishek Manu Singhvi, learned senior counsel appearing for the
      appellant, that though the issue was resolved by the Arbitrator by holding
      that there was no accord and satisfaction between the parties, however,
      he has omitted to give adequate reasons in support of point no.1. Thus, it
      is pleaded that in view of settled legal position that lack of reasons or
      gaps in the reasoning, is a curable defect under Section 34(4) of the Act,
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    I-PAY CLEARING SERVICES PRIVATE LIMITED v. ICICI BANK                       901
               LIMITED [R. SUBHASH REDDY, J. ]

award can be remitted to the arbitrator to give reasons. In support of          A
said plea that lack of reasons or gaps in reasoning in the award of the
Arbitrator is a curable defect, reliance is placed on the judgments of this
Court, in the cases of Kinnari Mullick and Anr. v. Ghanshyam Das
Damani1, Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd. 2
and also in Som Datt Builders Limited v. State of Kerala3. It is submitted
                                                                                B
that the language of Section 34(4) of the Act, is couched in very wide
terms and provides for remission of the matter to enable the Arbitrator
to take such steps, as may be necessary for elimination of grounds for
setting aside the award. It is submitted, though there is sufficient evidence
in support of the point no.1, the Arbitrator has not given adequate reasons
in support of the said point in the award. It is pleaded that Section 34(4)     C
of the Act is based on the Article 34(4) of UNCITRAL Model Law on
International Commercial Arbitration, which came up for consideration
before the Singapore Court of Appeals in the case of AKN & Anr. v.
ALC & Ors.4, wherein, it was held that remission is a ‘curative alternative’
to setting aside the award. Reference is also made to the judgment of
                                                                                D
Singapore High Court in the case of Permasteelisa Pacific Holdings
Ltd. v. Hyundai Engineering & Construction Co. Ltd.5.
       13. Shri Nakul Dewan, learned senior counsel for the appellant,
supplementing the arguments, has submitted that the power to remit
was conceived of as an alternative to setting aside the award. It is
                                                                                E
submitted that categorical statutory aim of sending a matter back to the
Arbitral Tribunal for remission, is to eliminate defects which would
preserve the award. Thus, it is submitted that all the defects in an arbitral
award, which are capable of being remedied, ought to be addressed in
remission proceedings, if an application under Section 34(4) of the Act is
filed. Again referring to the judgment of this Court in the case of Dyna        F
Technologies Pvt. Ltd. v. Crompton Greaves Ltd.2, learned senior
counsel has submitted that the provision under Section 34(4) of the Act
can be utilised in cases where the arbitral award does not provide any
reasoning or if the award has some gaps in the reasoning. Learned senior
counsels, with the above submissions, requested to set aside the impugned       G

1
  (2018) 11 SCC 328
2
  (2019) SCC ONLINE SC 1656
3
  (2009) 10 SCC 259
4
  (2015) SGCA 63
5
  (2005) SGHC 33                                                                H
902             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A     order and to issue directions for remitting the award to Arbitral Tribunal
      for consideration of the issue, on abrupt and illegal termination of the
      agreement entered between the parties and to give detailed reasons.
           14. On the other hand, Shri K.V. Vishwanathan, learned senior
      counsel for the respondent has made following submissions:
B
              The Notice of Motion moved by the appellant is dismissed by the
      High Court by assigning valid reasons in the impugned order and in view
      of the same, no interference is called for. No grounds are made out in
      the application filed by the appellant for remitting the matter to the
      Arbitrator, and in fact, the Arbitrator has not considered the relevant
C     documentary evidence produced on behalf of the respondent, and passed
      the award. As the Arbitrator has passed the award by ignoring important
      and relevant evidence on record, it suffers from perversity and patent
      illegality, which cannot be cured on remittal under Section 34(4) of the
      Act by the Arbitrator. Under guise of adding reasons, the Arbitrator
D     cannot take contrary view against the award itself. The Arbitrator in
      resumption proceedings cannot change his award and the same would
      be contrary to provision under Section 34(4) of the Act and would amount
      to Arbitrator assuming the role of the Court, which alone is empowered
      to set aside the award. It is submitted that in spite of sufficient evidence
      on record to prove that there was ‘accord and satisfaction’ between the
E     parties, without considering such evidence, the Arbitrator has proceeded
      on the premise that there was no ‘accord and satisfaction’ and passed
      the award in favour of the appellant. The findings recorded on the plea
      of ‘accord and satisfaction’ in the award without considering the entire
      evidence on record, constitute patent illegality, as such, same is to be
F     considered only by the Court while considering the application filed under
      Section 34(1) of the Act. Even assuming that on remittal, the Arbitrator
      wants to consciously hold that there was accord and satisfaction of claims
      and there was no abrupt and illegal termination of the contract, he would
      not be able to do so, as he cannot change his own award. The Judgments
      relied on by learned counsel for the appellant are distinguishable on facts
G
      and would not render any support to the case of the appellant. Oral
      submissions made before this Court, run contrary to pleadings on record
      in the application.
            15. To differentiate between ‘findings’ and ‘reasons’, learned senior
      counsel Mr. K. V. Vishwanathan relied on the judgment of this Court in
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     I-PAY CLEARING SERVICES PRIVATE LIMITED v. ICICI BANK                         903
                LIMITED [R. SUBHASH REDDY, J. ]

the case of Income Tax Officer, A Ward, Sitapur v. Murlidhar                       A
Bhagwan Das6. It is also submitted that the Notice of Motion moved by
the appellant under Section 34(4) of the Act, is belated and afterthought
and is made only to protract the litigation, and prayed for dismissal of the
appeal.
        16. Before we consider the various submissions made on behalf              B
of both sides, we need to notice certain relevant provisions of the
Arbitration and Conciliation Act, 1996. Section 31 of the Act deals with
‘form and contents of arbitral award’. As per the same, an arbitral award
shall be made in writing and shall be signed by the members of the
Arbitral Tribunal. The arbitral award shall state the reasons, upon which
it is based, unless parties agree that no reasons are to be given, or the          C
award is an arbitral award on agreed terms under Section 30 of the Act.
Chapter VII of the Act provides recourse against arbitral award. The
recourse to a Court against an arbitral award is to be in terms of Section
34(1) of the Act. As per Section 34(2A) of the Act, if the arbitral award
arising out of arbitrations other than international commercial arbitrations,      D
is vitiated by patent illegality, same is a ground for setting aside the award.
Sections 34(2A),(3) & (4) of the Act, read as under:
         “34.(2A) An arbitral award arising out of arbitrations other than
         international commercial arbitrations, may also be set aside by
         the Court, if the Court finds that the award is vitiated by patent        E
         illegality appearing on the face of the award:
                Provided that an award shall not be set aside merely on the
         ground of an erroneous application of the law or by reappreciation
         of evidence.
         (3) An application for setting aside may not be made after three          F
         months have elapsed from the date on which the party making
         that application had received the arbitral award or, if a request
         had been made under section 33, from the date on which that
         request had been disposed of by the arbitral tribunal;
               Provided that if the Court is satisfied that the application        G
         was prevented by sufficient cause from making the application
         within the said period of three months it may entertain the
         application within a further period of thirty days, but not thereafter.

6
    AIR 1965 SC 342                                                                H
904             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A            (4) On receipt of an application under sub-section (1), the Court
             may, where it is appropriate and it is so requested by a party,
             adjourn the proceedings for a period of time determined by it in
             order to give the arbitral tribunal an opportunity to resume the
             arbitral proceedings or to take such other action as in the opinion
             of arbitral tribunal will eliminate the grounds for setting aside the
B
             arbitral award.”
             17. From a reading of Section 34(4) of the Act, it is clear that on
      receipt of an application under sub-section (1), in appropriate cases on a
      request by a party, Court may adjourn the proceedings for a period
      determined by it in the order to give the Arbitral Tribunal an opportunity
C     to resume the arbitral proceedings or to take such other action as in the
      opinion of Arbitral Tribunal, will eliminate the grounds for setting aside
      the arbitral award.
              18. It is the case of the appellant that in view of abrupt and illegal
      termination of agreement by the respondent, it has suffered losses of
D     more than Rs.50 crores as all operations were paralysed, and the appellant
      had to pay its employees retrenchment compensation, etc. On the
      aforesaid grounds, a total claim of Rs.95 crores was made against the
      respondent. On the other hand, it is the case of the respondent that there
      was ‘accord and satisfaction’ between the parties and the same is evident
E     from several letters, which are part of record in the arbitration
      proceedings. Reliance is placed on the documentary evidence i.e. letters
      dated 01.06.2010, 17.06.2010, email dated 02.08.2010 and letters dated
      08.11.2010 & 20.01.2011. It is the specific case of the respondent that
      learned Arbitrator failed to appreciate such evidence, which would
      establish their case that there was accord and satisfaction between the
F     parties and there was no abrupt termination or any breach on their part.
      It is their case that in view of such omission to consider vital evidence on
      record, findings recorded by the Arbitrator are perverse and constitute
      patent illegality within the meaning of Section 34(2A) of the Act. The
      Notice of Motion filed under Section 34(4) of the Act by the appellant,
G     clearly states that the said Motion was moved as an abundant precaution
      and they are seeking remission to the Arbitrator to provide detail and
      express reasons in addition to reasons already stated in the arbitral award
      dated 13.11.2017. It is also their case that it is essential that additional
      reasons are made available by learned Arbitrator in support of his findings
      recorded in the award. On the other hand, it is the case of the respondent,
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  I-PAY CLEARING SERVICES PRIVATE LIMITED v. ICICI BANK                        905
             LIMITED [R. SUBHASH REDDY, J. ]

that there is no finding at all, on the issue viz. “whether the contract was   A
illegally and abruptly terminated by the respondent?”, and in spite of the
same, the Arbitrator without considering the important documents/
communications between the parties, which throw light on accord and
satisfaction between the parties, has proceeded to pass the award stating
that there was no ‘accord and satisfaction’.
                                                                               B
        19. As contended by learned senior counsel for the appellant, it is
true that Section 34(4) of the Act is couched in a language, similar to
Article 34(4) of the UNCITRAL Model Law on International
Commercial Arbitration. In the case of AKN & Anr. v. ALC & Ors.4,
by considering legislative history of the Model Law, it was held by
Singapore Court of Appeals that remission is a ‘curative alternative’. In      C
the case of Kinnari Mullick and Anr. v. Ghanshyam Das Damani1,
relied on by learned senior counsel for the appellant, the question which
fell for consideration was whether Section 34(4) of the Act empowers
the Court to relegate the parties before the Arbitral Tribunal after setting
aside the arbitral award, in absence of any application by the parties. In     D
fact, in the said judgment, it is held that the quintessence for exercising
power under Section 34(4) of the Act is to enable the Tribunal to take
such measures which can eliminate the grounds for setting aside the
arbitral award, by curing the defects in the award. In the judgment in the
case of Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd.2, it
was a case where there was no inquiry under Section 34(4) of the Act           E
and in the said case, this Court has held that the legislative intention
behind Section 34(4) of the Act, is to make the award enforceable, after
giving an opportunity to the Tribunal to undo the curable defects. It was
not a case of patent illegality in the award, but deficiency in the award
due to lack of reasoning for a finding which was already recorded in the       F
award. In the very same case, it is also clearly held that when there is a
complete perversity in the reasoning, then the same is a ground to
challenge the award under Section 34(1) of the Act. The case of Som
Datt Builders Limited v. State of Kerala3 is also a case where no
reasons are given for the finding already recorded in the award, as such,
this Court held that in view of Section 34(4) of the Act, the High Court       G
ought to have given Arbitral Tribunal an opportunity to give reasons.
       20. The aforesaid case law cited by the learned counsel appearing
for the appellant, is distinguishable on facts and would not render any
assistance in this case. When it is the specific case of the respondent
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906                SUPREME COURT REPORTS                         [2022] 2 S.C.R.


A     that there is no finding at all, on point no.1 viz. “whether the contract
      was illegally and abruptly terminated by the respondent?”, remission
      under Section 34(4) of the Act, is not permissible. In our view, Section
      34(4) of the Act, can be resorted to record reasons on the finding already
      given in the award or to fill up the gaps in the reasoning of the award.
      There is a difference between ‘finding’ and ‘reasons’ as pointed out by
B
      the learned senior counsel appearing for the respondent in the judgment
      in the case of Income Tax Officer, A Ward, Sitapur v. Murlidhar
      Bhagwan Das6. It is clear from the aforesaid judgment that ‘finding is a
      decision on an issue’. Further, in the judgment in the case of J. Ashoka
      v. University of Agricultural Sciences and Ors.7, this Court has held
C     that ‘reasons are the links between the materials on which certain
      conclusions are based and the actual conclusions’. In absence of any
      finding on point no.1, as pleaded by the respondent and further, it is their
      case that relevant material produced before the Arbitrator to prove
      ‘accord and satisfaction’ between the parties, is not considered, and the
      same amounts to patent illegality, such aspects are to be considered by
D
      the Court itself. It cannot be said that it is a case where additional reasons
      are to be given or gaps in the reasoning, in absence of a finding on point
      no.1 viz. “whether the contract was illegally and abruptly terminated by
      the respondent?”
              21. Further, Section 34(4) of the Act itself makes it clear that it is
E     the discretion vested with the Court for remitting the matter to Arbitral
      Tribunal to give an opportunity to resume the proceedings or not. The
      words “where it is appropriate” itself indicate that it is the discretion to
      be exercised by the Court, to remit the matter when requested by a
      party. When application is filed under Section 34(4) of the Act, the same
F     is to be considered keeping in mind the grounds raised in the application
      under Section 34(1) of the Act by the party, who has questioned the
      award of the Arbitral Tribunal and the grounds raised in the application
      filed under Section 34(4) of the Act and the reply thereto. Merely because
      an application is filed under Section 34(4) of the Act by a party, it is not
      always obligatory on the part of the Court to remit the matter to Arbitral
G     Tribunal. The discretionary power conferred under Section 34(4) of the
      Act, is to be exercised where there is inadequate reasoning or to fill up
      the gaps in the reasoning, in support of the findings which are already
      recorded in the award. Under guise of additional reasons and filling up

      7
H         (2017) 2 SCC 609
   I-PAY CLEARING SERVICES PRIVATE LIMITED v. ICICI BANK                         907
              LIMITED [R. SUBHASH REDDY, J. ]

the gaps in the reasoning, no award can be remitted to the Arbitrator,           A
where there are no findings on the contentious issues in the award. If
there are no findings on the contentious issues in the award or if any
findings are recorded ignoring the material evidence on record, the same
are acceptable grounds for setting aside the award itself. Under guise of
either additional reasons or filling up the gaps in the reasoning, the power
                                                                                 B
conferred on the Court cannot be relegated to the Arbitrator. In absence
of any finding on contentious issue, no amount of reasons can cure the
defect in the award. A harmonious reading of Section 31, 34(1), 34(2A)
and 34(4) of the Arbitration and Conciliation Act, 1996, make it clear
that in appropriate cases, on the request made by a party, Court can give
an opportunity to the arbitrator to resume the arbitral proceedings for          C
giving reasons or to fill up the gaps in the reasoning in support of a
finding, which is already rendered in the award. But at the same time,
when it prima facie appears that there is a patent illegality in the award
itself, by not recording a finding on a contentious issue, in such cases,
Court may not accede to the request of a party for giving an opportunity
                                                                                 D
to the Arbitral Tribunal to resume the arbitral proceedings. Further, as
rightly contended by the learned counsel appearing for the respondent,
that on the plea of ‘accord and satisfaction’ on further consideration of
evidence, which is ignored earlier, even if the arbitral tribunal wants to
consciously hold that there was ‘accord and satisfaction’ between the
parties, it cannot do so by altering the award itself, which he has already      E
passed.
       22. For the foregoing reasons, we do not find any merit in this
appeal so as to interfere with the impugned order passed by the High
Court. Accordingly, this Civil Appeal is dismissed, with no order as to
costs.                                                                           F

Bibhuti Bhushan Bose                                         Appeal dismissed.
(Assisted by : Neha Sharma, LCRA)


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