ARBP766-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.766 OF 2010 Narendra Manohar Sakharkar .. Petitioner Versus Kotak Mahindra Bank Ltd. .. Respondent Ms.S.R.Pandey for petitioner Mr.Chinmay Gupte i/b. Mohit Gadkari & Co. for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 17th January 2011 P.C.: 1] Heard. Admit. Respondents waive service. By consent heard forthwith. 2] The petition impugns the Award made on 10th January 2010 by the sole arbitrator. The award directs the petitioner to pay to the respondent a sum of Rs.3,06,737.68, inclusive of interest and other charges and further interest at 13.5% on this sum from 14th March 2009 till the date of payment and costs of the arbitration. 3] The only contention raised by the petitioner's Counsel is that the ARBP766-10 2 Award is ex parte. It was pointed out that barring a notice with regard to change of venue of the arbitral proceedings nothing has been served on the petitioner and the award erroneously states that the petitioner is served. In fact, the claim of the respondent is false and bogus and this was demonstrated to the court during the course of proceedings and particularly in the hearing of an application under section 9 of the Arbitration and Conciliation Act, 1996. It is clear that at that time it was not revealed by the respondent that an arbitrator was appointed and he will conduct the proceedings shortly. 4] Inviting my attention to the Award and particularly paras 6 and 7 thereof, it is contended that the Arbitrator has not concluded that the notice of the hearing was duly served. The Arbitrator seems to have proceeded on the basis that the petitioner is deemed to have been served and, therefore, the Award is contrary to the public policy of India and should be quashed and set aside. 5] On the other hand, the learned Counsel appearing for respondents supported the award and it is contended that notice was duly served and on two occasions, despite receipt of notice when the petitioner failed to appear, ex parte award has been made. For all these reasons, this is not a fit case where this Court should proceed on the basis that the award is ex parte and deserves to be set aside. ARBP766-10 3 6] After the matter was heard for some time, both sides agree that in the interest of justice and to give last opportunity to defend the claim of respondents against the petitioner, the subject award be set aside and the matter be remitted back to the same sole arbitrator. 7] Accordingly, following order:- (a) The Award dated 10th January 2010, a copy of which is annexed at page 47 of paperbook passed in Arbitration Case No.332 of 2009 is quashed and set aside. The said Arbitral Reference is restored to file of the same sole arbitrator, who shall proceed to decide the claim of respondents afresh and after giving the petitioner due opportunity to defend the same. (b) The Arbitrator shall render a fresh award without being influenced by any of his findings and conclusions recorded earlier. The Arbitrator should conclude the proceedings within three months from the date of first appearance of parties. It is agreed between the parties that they shall appear before the learned Arbitrator on 14th February 2011. The Arbitral venue shall be at Andheri, Mumbai and no notice of this date of appearance shall be given to the petitioners. Petitioner's Advocate states that she will communicate this order to the ARBP766-10 4 petitioner. In addition, the petitioner is present in court today and he states that he will duly appear before the Arbitrator on 14th February 2011. (d) Petition is disposed of in the above terms. No costs. (S.C.DHARMADHIKARI, J)