1 905.arbap.116.07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION skt ARBITRATION APPLICATION NO. 116 OF 2007 M/s.Project Engineers ... Applicant Vs. Oil and Natural Gas Corporation Ltd. ... Respondent ...... Mr.R.D.Dhanuka i/by Ms.Vaishali Choudary for the Petitioner. Mr.Bhalwal a/w. Mr.P.N.Singh i/by M/s. Vyas & Bhalwal for the Respondent. ...... CORAM : S.J. VAZIFDAR, J. DATE : OCTOBER 6th, 2010. P.C. 1 This is an application under Section 11 of the Arbitration and Conciliation Act, 1996. 2 The disputes and differences had been referred to the sole arbitration of Mr.Y.V.Chandrachud, Former Chief Justice of India, who unfortunately is no more. The learned Arbitrator had made and published an award dated 14th December 2005. Certain claims were awarded in favour of the Applicant. A part of the counter-claim made by the Respondent was also allowed. 3 The Applicant challenged this award by filing Arbitration Petition No135/2006. The learned Single Judge by an order dated 11th September 2 905.arbap.116.07.sxw 2006, rejected the contention on behalf of the Petitioner as regards the rejection by the Arbitrator of claim no.1(iii). This was on merits and therefore, cannot be the subject matter of a fresh reference. The learned Judge, however, set aside the award in so far as it related to the counterclaim. Having done so, the learned Judge set aside the entire award for the reason that under Section 34 of the Arbitration and Conciliation Act, 1996, the Court has no power to modify the award. This was despite the fact that the Respondent had not challenged the award. The learned Judge observed that as the award was required to be set aside in part, the entire award would have to be set aside. This ratio was followed in subsequent judgments. However, a Full Bench of this Court in “R.S.Jiwani V/s. Ircon International Ltd., 2010(1), Bom.C.R., 529” has overruled this view. 4 In the circumstances, the award in the present case except as regards claim no.1(iii) was set aside on merits but in view of the law as it stood prior to the Judgment of the Full Bench. 5 In “M/s.Associated Constructions V.s, Mormugoa Port Trust, in Arbitration Application No. 18/2007”, I had by a judgment dated 8th July 2010 held that in such circumstances, the award must be held to have been set aside for reasons other than on merits and the parties are 3 905.arbap.116.07.sxw entitled to go for afresh arbitration again. 6 In the circumstances, Mrs.Justice K.K.Baam, a former Judge of this Court is appointed as a sole Arbitrator. It is clarified that claim no. 1(iii) and the counterclaim are not referred to arbitration as they have attained finality by virtue of the order and judgment dated 11th September 2006 and the judgment and order of the Division Bench dated 6th December 2006 in Appeal No. 877 of 2006 filed by the Respondents. 7 There shall be no order as to costs. 8 The application is accordingly disposed off. -