THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
C.M.A.No.505 of 2008
JUDGMENT:
This Civil Miscellaneous Appeal is filed by the appellant/first respondent assailing the order dated 29.09.2006 in OP No.2266 of 2002 on the file of the XIV Additional Chief Judge, City Civil Court, Hyderabad.
2. The petitioner in OP No.2266 of 2002 has filed the application under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') to set aside the award dated 10.06.2002 passed by the second respondent/ Mr. Bijay Mandhania, sole arbitrator. The learned XIV Additional Chief Judge having considered the entire material available on record allowed the petition and set aside the award dated 10.06.2002 passed by the second respondent/arbitrator.
3. Feeling aggrieved by the same, the first respondent / M/s.CIL Securities Limited, Hyderabad, has filed this C.M.A. on the following grounds: Page 2 of 6
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a) That the Court below has failed to consider the material available on record and failed to observe that the memorandum of agreement dated 10.07.2000 is not only between the appellant and the respondent, there is another person by name Mr. M.P. Rawat, along with the respondent and he was not made as a party to O.P.No.2266 of 2002;
b) That the Court below ought to have seen that the respondent/petitioner is not a registered firm and debarred in law to maintain the application under Section 69 (2) of the Indian Partnership Act, 1932;
c) That the Court below ought to have seen that Sections 11 (6) and 34 of the Act and also does not allow the respondent/petitioner to maintain the arbitration application on the alleged ground of delay, as the same was not as per the procedure and the petition was not Page 3 of 6 AVR,J CMA No.505 of 2008 maintainable and it amounts to abuse of process of law;
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d) That the Court below ought to have seen that the petition filed under Section 34 of the Act does not point out any deficiencies in the award passed by the Arbitrator and there are no mala fides attributed to the Arbitrator and the award passed is not liable to be set aside.
4. The petitioner / M/s.CIL Securities Limited has filed O.P.No.2266 of 2002 under Section 34 of the Act to set aside the award dated 10.06.2002 passed by the second respondent/arbitrator. The learned XIV Additional Chief Judge upon hearing both the parties, considering the averments of the counter filed by the respondents therein, allowed OP No.2266 of 2002, on the principles laid under Section 34 (2)(9)(iii) of the Act holding that proper notice of appointment of arbitrator of the arbitration proceedings was not given to the petitioner therein, accordingly, award was set aside.
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5. Be it stated that as per the counter filed by the second respondent/arbitrator denying the petition averments it was added with pen as mentioned in para-8 of the order impugned that "it is submitted that no proceedings are available with this respondent, it seems the same are misplaced while shifting residence and hence are not traceable."
6. The learned XIV Additional Chief Judge has observed that the shifting of house is absolutely falsehood as notices sent from the Court were served only at the said address and no fresh address was also furnished. The sole contention of the petitioner in OP No.2266 of 2006 is that though the arbitrator has held a preliminary meeting, he did not conduct any meetings after receiving the report of the Chartered Accountant and in fact, the petitioner has been sending letters to the Arbitrator to convene the meeting of both the parties for deciding the dispute, but the arbitrator did not call for any meeting to decide the dispute.
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7. It appears that the petitioner has also filed a writ petition before this Court for appointment of an Arbitrator. In the meanwhile, that award dated 10.06.2002 was passed by the second respondent/arbitrator. Therefore, while considering the principles laid under Section 34 (2)(9)(iii) of the Act, since no opportunity was given to the petitioner during arbitration proceedings the award was set aside with a liberty to the parties to move the High Court for appointment of another arbitrator for deciding his claims on merits.
8. On an overall consideration of the material available on record, I am of the opinion that there is no evidence on record to show that the Arbitrator has issued notice to the parties or the Arbitrator has responded to the notices of the petitioner and fix a date on receipt of the report of the Chartered Accountant. The only claim made by the second respondent/arbitrator is that in view of shifting of his house, the relevant material is not traced, which is far from the truth for the simple reason that at the address is given in the arbitration award itself notice was Page 6 of 6 AVR,J CMA No.505 of 2008 sent from the Court and it was served upon him, as observed by the Court below in para-9 of the order impugned and the Court below having considered the principles laid under Section 34 (2) (9) (iii) of the Act has rightly set aside the arbitration award dated 10.06.2002 passed by the second respondent/ arbitrator.
9. In the result, the Civil Miscellaneous Appeal is dismissed as devoid of merits, confirming the order dated 29.09.2006 in OP No.2266 of 2006 on the file of the XIV Additional Chief Judge, City Civil Court, Hyderabad. However, in the circumstances of the case, there shall be no order as to costs.
Miscellaneous Applications, if any pending in this appeal, shall stand closed.
_________________________________ A. VENKATESHWARA REDDY, J.
Date: 08.11.2022 Isn