* IN THE HIGH COURT OF DELHI AT NEW DELH
+ O.M.P. No.383/2001
December 9, 2009.
M/S. SRI AMAR CONSTRUCTIONS & ORS. ...Petitioner
Through: Mr. Sudhir Nandrajog, Senior Advocate.
VERSUS
ESCORTS FINANCE LTD. & ANR. ....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
% JUDGMENT(ORAL)
VALMIKI J. MEHTA, J.
1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 challenges the Award dated 20.7.01 passed by the sole Arbitrator. The non-objector/respondent was the claimant before the Arbitrator. The non- objector is a finance company which had advanced monies to the present OMP No.383/2001 Page 1 petitioner. The admitted facts are that no pleadings or evidence was filed on behalf of the present objector before the Arbitrator. The Arbitrator in para 4 of the Award records that the present petitioner did not turn up for even one hearing and was accordingly proceeded ex-parte. The Arbitrator has consequentially passed an Award with respect to the claims of the claimant.
2. The only objection of the petitioner before this Court is that by the letter dated 16.3.01 the petitioner had informed the Arbitrator that the petitioner was not accepting/agreeable to the appointment of the Arbitrator as the sole Arbitrator in the matter. It is therefore contended that once the petitioner refuses to submit to the jurisdiction of the Arbitrator, the Arbitrator could not pass an Award against the petitioner. It is further contended that the objection before this Court is that it was the Managing Director who could appoint an Arbitrator whereas in the present case, the Arbitrator was appointed by only a Law Officer of the present respondent.
3. I am not inclined to go into the issue as to the interpretation of the clause whether the Arbitrator was validly appointed or not. This is for the reason that a reference to the letter dated 16.3.01 shows that such objection was not raised before the Arbitrator. The letter dated 16.3.01 shows that such objection now pressed has not been raised as a ground in the said letter, and the only ground mentioned is that the agreement numbers which were found in the OMP No.383/2001 Page 2 books of the petitioner were different than the agreement numbers mentioned in the notices of arbitration. In view of the fact that the present petitioner did not file any pleadings nor lead any evidence and in fact was proceeded exparte because of non-appearance, I am of the opinion that it does not lie in the mouth of the petitioner to raise the objection now argued at the present stage. Further, even if the objection was raised before the Arbitrator it was necessary that the objection is pressed and pursued, in that, an application under Section 16 of the Arbitration and Conciliation Act, 1996 ought to have been moved and pressed which admittedly has not been done. Even if the letter dated 16.3.01 is treated as an application the same had to be pressed and argued before the Arbitrator and which has not been done. Further, since the petitioner failed to press the objection effectively it has taken the chance of the Award on merits, going in its favour because having failed to participate, the present petitioner was hoping that in spite of the same, the Award may go in its favour. It has been held by the Supreme Court in the case of Inder Sain Mittal Vs. Housing Board Haryana (2002)3SCC 175 that if a person does not pursue his objections with respect to the jurisdiction of the Arbitrator in the arbitration proceedings and takes the chance of the Award going in his favour, then, if the Award goes against the person, he cannot thereafter object to the jurisdiction of the Arbitrator. Reference is also invited to the judgment reported as Bharat Engg.
OMP No.383/2001 Page 3 Enterprises Vs. DDA 2006 (Supp.)Arb. LR 129 in which it was laid down that if a plea is not raised before the Arbitrator the same cannot be subsequently raised before the Court.
4. I may also state that the jurisdiction of this Court while hearing the objections under Section 34 is indeed very limited. It is necessary that there must be illegality, violation of contractual provisions or perversity in the Award. I do not find that there is any illegality, perversity or violation of contractual provisions. This is all the more so, because as stated by me above, no pleadings were filed by the petitioner before the Arbitrator and nor was any evidence led on its behalf.
5. In view of the aforesaid, I do not find any merit in this petition which is, therefore, dismissed, though without any order as to costs since the respondent is not present in the Court.
VALMIKI J.MEHTA, J
December 9, 2009
Ne
OMP No.383/2001 Page 4