- 1 - 905.nms.943.11rpl.15.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 943 OF 2011 IN REVIEW PETITION (LODGING) NO. 15 OF 2011 IN ARBITRATION APPLICATION NO. 160 OF 2009 AND REVIEW PETITION (LODGING) NO. 14 OF 2011 City Corporation Ltd. ..Petitioner -Versus- Chawala Interbild Construction Co. Pvt, Ltd. & Anr. ...Respondents .......... Dr.Virendra Tulzapurkar, Senior Counsel a/w. Mr.R.D.Soni i/b Ram & Co. for the Petitioner. Mr.Rajiv Singh i/b.Crawford Bayley & Co. for Respondent No.1. .......... CORAM : S.J. VAZIFDAR, J. DATE : 7TH APRIL 2011. P.C. 1 In the Notice of Motion, the Petitioner seeks condonation of delay of 152 days in filing the above Review Petition. 2 The Review Petition is in respect of an order dated 16th September 2010 passed by me appointing an Arbitrator on behalf of the Petitioner to the Review Petition i.e. the Respondent No.1 to the Application, under - 2 - 905.nms.943.11rpl.15.11 Section 11 of the Arbitration and Conciliation Act, 1996 (for short ‘the said Act’). As the facts are relevant to both, I intend disposing off the Notice of Motion and the Review Petition by a common order. 3 When the matter was heard on 16th September 2010, the Petitioner’s Advocate failed to remain present due to personal difficulties. It is not necessary to elaborate on this aspect for the fact remains that the Petitioner’s Advocate remained absent and I see no reason to penalise the Petitioner for the same. 4 It is true that the Petitioner was informed on 4th October 2010 about the said order dated 16th September 2010. Even so in the facts of the present case the delay ought to be condoned. It is not as if the Petitioner did nothing. The Petitioner was served a notice by the presiding Arbitrator. The Petitioner later on discovered that the Arbitrator nominated by this Court had in fact appeared on behalf of and represented Respondent No.1 i.e. the Applicant in the Section 11 Application, in an arbitration. He had also advised Respondent No.1. 5 Indeed had these facts been pointed out to me, I would have appointed another Arbitrator on behalf of the Petitioner. I would have done so, even if the mere appearance of an Arbitrator on behalf of one of the - 3 - 905.nms.943.11rpl.15.11 parties in another matter, would not necessarily debar him from acting as an Arbitrator in another matter. The facts however ought to have been pointed out to the Court. 6 For the above reasons, the delay ought to be condoned. Notice of Motion No.943 of 2011 is made absolute in terms of prayer (a). 7 The Review Petition is made absolute in terms of prayer (b). The Arbitration Application No.160 of 2009 is restored to file and shall be heard by the learned designate of the Hon’ble Chief Justice.