1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 16 of 2007 Pawankumar Ramswaroop Gupta .. Petitioner versus Chiranjilalji Bhomraj Gupta .. Respondent ... Mr.Bipin Shukla i/b SRS Legal for the petitioner. Mr.P.M.Shah for respondent no.2. None present for respondent no.1. CORAM : D.G.KARNIK, J DATED : 3rd June 2008 P.C.: 1. Heard learned counsel for the petitioner and respondent no.2. Respondent no.1 and his counsel are absent when called out. 2. By this petition, petitioner challenges the award dated 26th March 2006, copy of which is at 2 Exhibit-D to the petition, passed by respondent no.2. 3. Disputes between the petitioner and respondent no.1 was referred to arbitration by the parties by an agreement dated 25th August 2006 (Exhibit-A to the petition) On the same day, a preliminary meeting was held by the learned arbitrator. According to the petitioner, in the said preliminary meeting, respondent no.2 told the petitioner and the respondent no.1 that he would issue notices to the parties about the schedule of arbitration to be held. According to the petitioner, no further notices were ever issued by the respondent no.2. No statement of claim was filed by the respondent no.1 and no opportunity of filing any reply was issued to the petitioner. The respondent no.2 straight way passed the impugned award on 26th September 2006 without hearing the petitioner and without in any manner conducting the arbitration proceedings. The petitioner has made these averments on oath in paragraph no.5 of the Arbitration Petition. 4. Respondent no.1 was served. He filed an appearance through Mr.Manoj K. Upadhyay, but did not file any affidavit in reply. He also did not appear at the hearing. The averments made in the petition 3 and in particular paragraph no.5 thereof are not rebutted by the respondent no.1. Respondent no.2 however filed an affidavit in reply denying the averments made by the petitioner. Counsel for the respondent no.2 submitted that in the preliminary meeting on 25th August 2006 itself the respondent no.2 had given directions to the parties to remain present on 7th September 2006. He further submitted that since the parties were related to each other and they were known to the learned Arbitrator, it was agreed by the parties that the technical rules of arbitration need not be followed and therefore the respondent no.2 did not follow the said procedure. Perusal of the arbitration agreement (Exhibit-A_ which is in writing however does not show that the parties had given summary powers to the arbitrator or had ever agreed that he need not follow the usual procedure. If one thing is clear from the affidavit of the respondent no.2 it is that he had not followed normal procedure for arbitration. He himself has stated that he has not followed it because it was so agreed between the parties. In the circumstances and in the absence of any denial by respondent no.1 it is difficult to accept the contention of the arbitrator that parties had agreed that he need not follow the usual procedure for arbitration or exercise summary powers. It is absolutely clear to me that the 4 respondent no.2 had not followed the procedure for arbitration. 5. The learned Arbitrator has stated in the affidavit in reply that the petitioner and the respondent no.1 had separately filed before him copies of the statement of accounts and they were marked as "A" and "B". However, the record and proceedings of the arbitration has not been filed by the learned arbitrator. It is the specific contention by the petitioner that no notice of hearing was ever issued, no arbitral proceedings were ever held. Respondent no.2 has denied this. In the circumstances, he ought to have filed R & P or atleast the office copy of the notice issued to the petitioner and its acknowledgement. I am therefore inclined to accept the statement made on oath by the petitioner that no notice of arbitration was ever issued and no arbitral proceedings were ever held in accordance with law. 6. In any event, it is clear that on the admission of respondent no.2 itself that he had not followed the usual procedure for arbitration because it was so agreed between the parties. However such agreement is not produced on record and the written 5 agreement (Exhibit-A) does not show any such agreement. In the circumstances, I am satisfied that no arbitral proceedings in accordance with law was held. No opportunity was given to the petitioner to state his case and produce the material and support of his case. The award therefore needs to be set aside and is accordingly set aside. Petition is accordingly allowed. (D.G. KARNIK, J)