-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO. 7 OF 2008 R.S. Mandrekar ).. Petitioner Versus M/s Amul Crankshaft Pvt. Ltd. and another ).. Respondents Mr M.J. Jamdar for the Petitioner. None present for the Respondent. CORAM : SWATANTER KUMAR, C.J. DATED : 20TH MARCH 2009 P.C. Affidavit of service has been filed showing that the Respondent had been served for 20th February 2009. Registry also confirm that they have been served. The matter was adjourned on 20th February 2009. Today again nobody is present on behalf of the Respondents. 2. The matter is taken up for hearing ex-parte as the Respondents have failed to appear despite service. 3. The parties entered into an agreement on 16th September -2- 2005 for a project consultancy. Various terms and conditions of the contract were specified in the agreement itself. Dispute between the parties were to be referred to the Arbitral Tribunal in terms of the agreement between the parties. The arbitration clause reads as under :- “H. DISPUTES Disputes between the Consultant and the Client will be referred to a Sole Arbitrator agreed by the parties, failing which, to two arbitrators, one to be appointed by each party and the Presiding Arbitrator appointed by the two nominated arbitrators. The arbitration shall be conducted as per the Arbitration and Conciliation Act, 1996 or any modification or repeal thereof. The Award shall be final and binding on both the parties. The jurisdiction will be only at Mumbai.” 4. In furtherance to the above clause, the Petitioner had appointed Mr Justice S.M. Daud as their nominee Arbitrator and Respondent No.1 in this Petition had nominated Tarun Kumar V. Shah, a practicing Advocate as their Arbitrator. The arbitration proceedings have commenced and are stated to be pending. 5. However, in the meanwhile, the Petitioner have filed the present Petition under Sections 12 to 14 of the Arbitration and Conciliation Act, 1996 on the ground that Respondent No.2's impartiality -3- and independence was questionable and furthermore lhe lis acting as the Counsel of Respondent No.1. Thus, the mandate of Arbitrator issued in his favour should be terminated and any other person be appointed as Arbitrator. 6. As already noticed above, despite service nobody has appeared to contest the Petition on behalf of the Respondents. 7. The learned Counsel appearing for the Petitioner has referred to the judgment of the Supreme Court in the case of Bloom Dekor Limited vs Subhash Himatlal Desai and others, (1994) 6 SCC 322, where the Supreme Court after noticing the unprofessional conduct of Respondent No.2, had passed a comment which clearly shows that the independence and integrity of Respondent No.2 is questionable. Furthermore, it is evident from the record that the notice which was issued it appears that Tarun Kumar Shah was still acting on behalf of Respondent N.1 as their Counsel. In these circumstances and in view of the unrefuted allegations, I am of the considered view that this Petition needs to be accepted, which is hereby accepted. The mandate of Arbitrator in favour of Respondent No.2 Tarun Kumar Shah is terminated and Hon'ble Mr. B.V. Chavan, former Judge of this Court, is -4- appointed as the Arbitrator. Arbitration proceedings shall continue accordingly. 8. Petition disposed of accordingly. No order as to costs. CHIEF JUSTICE