S.K. Sarawagi & Co. vs Minerals & Metals Trading ...
1992 Latest Caselaw 90 Del

JUDGMENT

Gokal Chand Mital, C.J.

(1) There was a contract, which came to an end between the parties in 1966. Under that contract some claims were sought to be made on behalf of M/s. S.K-Sarawagi & Co.(P) Ltd. The appellant company claimed Rs.3,51,378.50 and filed an application under section 20 of the Arbitration Act on 24th July, 1985 i.e. nearly after 20 years of the supplies having been made. A learned Single judge of this Court by ex parte order dated 27th July, 1988 appointed Sh.Ashok Bhasin, Advocate to arbitrate the disputes. Minerals and Metals Trading Corporation of India Ltd., the respondent before the learned Single Judge filed an application under Order 9 rule 13, Civil Procedure Code for recalling order of appointment of arbitrator ex parte for the reasons given in the application. A learned Single Judge was satisfied with the absence of the respondent and also took notice of the fact that the appellant had raised the dispute nearly after 20 years and it was a good case for giving an opportunity to the respondent to lead evidence by way of affidavits before deciding the application under section 20 of the Arbitration Act. Accordingly, the ex parte order was set aside with the direction to the respondent to pay costs of Rs.5000.00 incurred by the petitioner in paying to the arbitrator and also costs of Rs.2,500.00 for enabling it to file affidavit by way of evidence by order dated 3rd January, 1989. This is an appeal by M/s. S.K.Sarawagi & Co. (P) Ltd. On a consideration of the matter, we find not a least ground to interfere with the discretion exercise by the learned Single Judge in setting aside the ex parte order of appointment of Arbitrator by allowing application under Order 9 rule 13, Civil Procedure Code. Both parties will participate in the matter again and this what the justice demands that the matter should generally be decided in the presence of the partics. No malafide or want of bona fide has been shown on the part of the respondent in suffering the ex parte order. Accordingly, the appeal is devoid of merit and is dismissed, leaving the parties to bear their own costs. Parties, through their counsel, are directed to appear before a learned Single Judge on 24th February, 1992.