1 arbap44-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO.44 OF 2008 Lalitkumar V. Sanghavi ....Applicant V/s. Dharamdas V. Sanghavi & Ors. ....Respondents Mr.Yatin R. Shah for the Applicant. Mr.K.P. Anil Kumar for Respondent No.1. Mr.Satyam Vaishnav with Mr.Anil Chauhan i/b N.N. Vaishnawa for Respondent No.2. CORAM : S.J. VAZIFDAR, J. DATE : 24TH SEPTEMBER, 2010. P.C. :- 1. The arbitration application has been filed under section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of an arbitrator in place of the earlier arbitrator. Pursuant to an order dated 21.2.2003 in Arbitration Application No.263 of 2002, a presiding arbitrator was appointed. The arbitral tribunal consists of three arbitrators. 2. It is not necessary to consider the merits of the contentions or even the facts of the case. It is sufficient to set out the order of the arbitral tribunal as a result whereof, the present application has been filed. It reads as under :- “In consultation with the Co-Arbitrators, I have to inform you as under :- The matter is pending since June, 2003 and 2 arbap44-08 though the meeting was called in between June, 2004 and 11th April, 2007, the Claimant took no interest in matter. Even the fees directed to be given is not paid. In these circumstances, please note that the arbitration proceedings stands terminated. All interim orders passed by the Tribunal stand vacated.” 3. I do not intend expressing any opinion as to the correctness of the order of the arbitral tribunal, as the application filed under section 11 of the 1996 Act, in these circumstances is not maintainable. 4. It was submitted on behalf of the Applicant that the case falls within 14(1)(b) which provides that the mandate was terminated if he withdraws from his office or the parties agree to terminate of his mandate. The order does not indicate that the arbitrators withdrew from their office. Had they done so, the case would have been entirely different. They have consciously stated that “the arbitration proceedings stands terminated”. The parties admittedly did not agree to termination of the mandate of the arbitral tribunal. Thus the case therefore does not fall within 14(1)(b). 5. The order of the arbitral tribunal clearly states that the Applicants took no interest in the matter, meaning thereby that they failed to take steps necessary to prosecute the matter. At the costs of repitition, whether the finding is correct or not is a different matter altogether, with which I am not concerned. It was strongly argued that the default was entirely on the part of the respondents and not on the Applicant’s part. That aspect is kept open. 6. The order of the arbitral tribunal is not on the merits of the disputes. Thus the arbitration proceedings have not been terminated by a final arbitral award but by an order of the arbitral tribunal. 3 arbap44-08 7. In view of the judgments of this Court in AIR 1999, Bombay 219 – M/s.Anuptech Equipments Pvt. Ltd. v. M/s.Ganpati Co-operative Hosing Society Ltd. & others and AIR 2003 Bombay 296, Harinarayan G. Bajaj v. Sharedeal Financial Consultants Pvt. Ltd. and another, the remedy of the applicant is by filing a writ petition and not an application under section 11 of the said Act. 8. In the circumstances, the arbitration application is dismissed. No order as to costs.