THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE K.S. APPA RAO C.M.A No.602 OF 2011 JUDGMENT: (Per the Hon’ble Sri Justice N.V. Ramana) The appellant-applicant filed this appeal against the order, dated 7.4.2011 passed in A.O.P.No.406 of 2008 by the learned District Judge, Srikakulam. The facts that are necessary for disposal of the case are that the respondents invited bids for execution of the work detailed in package to AP-2 on NH 5 between K.M.97, Srikakulam and KM 171 (Palasa) of the Visakhapatnam to Ichapuram Section of NH 5. The 1st respondent invited tenders and several bids were received including a bid from the appellant which is a joint venture between M/s. Shapoorji Pallonji & Company Limited and M/s. IVRCL Infrastructures and Projects Limited. After complying with the due procedure, the bid given by the appellant was accepted for a sum of Rs.229,75,93,104/- and a letter of award was issued in favour of the claimant on April 20, 2011, according to which construction work was to be completed within a period of 31 months and thereafter, a contract was entered into between the parties. During the execution of the works, a dispute arose between the parties on the amount of escalation payable in terms of the contract. Then, all efforts to resolve the dispute failed. Hence, the claimant invoked the dispute resolution clause in the contract on 24.6.2004. Pursuant thereto, a Dispute Resolution Board was constituted and the said board decided the issue in favour of the appellant on 27.1.2005. The 1st respondent being aggrieved by the decision, expressed its intention to have the matter resolved through arbitration vide letter dated 21.2.2005. The appellant then nominated respondent No.4 as their Arbitrator on 26.2.2005 and the 1st respondent nominated 3rd respondent as their Arbitrator on 24.8.2005. The two arbitrators met on 5.9.2005 and agreed to name the 2nd respondent as Presiding Arbitrator. Then the Arbitration Tribunal, which was legally constituted, passed the order, dated 18.3.2007. Aggrieved by the award, the appellant preferred an appeal in A.O.P.No.406 of 2008 under Section 34(i) to (v) of the Arbitration & Conciliation Act, 1966 to set aside the award passed by the Arbitral Tribunal consisting of respondents 2 to 4 and the same was dismissed by order dated 7.4.2011. The learned Counsel for the appellant contended that as per the provisions of Order IX Rule 8 CPC, in case of non-appearance of the Counsel for the petitioner, the matter has to be dismissed for default, and the Court cannot proceed to pass an order on merits. However, since in the instant case, inspite of noting the non-appearance of the counsel, the Court below passed the order on merits, the same cannot be sustained. The learned Counsel for the respondents did not dispute the legal position. However, he submitted that the matter be remanded to the Court below with a direction to dispose of the A.O.P. on merits after providing opportunity to both the parties. Heard the learned Counsel for the appellant and the learned Counsel for the respondents. The order under appeal, passed by the Court below reads as follows: “Even though several opportunities given to the appellant, the appellant did not putforth its arguments and it seems that the appellant is not evincing any interest to prosecute its case. Today also viz., 7.4.2011,there is no representation on behalf of the appellant and therefore, having regard to the case facts and circumstances and in view of the pleadings and counter pleadings and written submissions and material available on record, this Court is of the opinion that it is a fit case to dismiss the appeal/A.O.P. confirming the award passed by the learned Arbitral Tribunal consisting of respondents 2 to 4.” From a perusal of the order under appeal, would disclose that the counsel for the appellant did not appear and there was no representation on his behalf, and even though neither the appellant nor his counsel was present, yet the Court below proceeded to pass order confirming the award, taking into consideration the pleadings and counter pleadings/written submissions and material available on record. This approach of the Court below is not correct. When neither the appellant nor his counsel was present, the only course open to the Court below was to dismiss the A.O.P. for default, but not to proceed to pass an order considering the material on record. Since the order under appeal, passed by the Court below, is without hearing the appellant or his counsel, the same cannot be sustained and is liable to be set aside. In the result, the order under appeal is set aside. The A.O.P is remanded to the Court below with a direction to dispose of the same in accordance with law after providing opportunity of hearing to both the parties. Accordingly, the appeal is allowed. No costs. ___________________ Justice N.V. Ramana _____________________ Justice K.S. Appa Rao Date: 29.6.2011 Nn. THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE K.S. APPA RAO C.M.A No.602 OF 2011 (Judgment delivered by the Hon’ble Sri Justice N.V. Ramana) 29.6.2011