*1* arbp.308.10.17.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.308 OF 2010 Jyoti Ledwani. ..Petitioner -Versus- Jayantilal A. Patel. ..Respondent .......... Mr.Anand Mishra and Mr.S.R.Mishra i/b Mr.A.M.Saroagi, for the Petitioner. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 05th January, 2011. P.C. 1 Though the petition is listed for direction, the learned counsel for the Petitioner states that he is ready to argue on admission. At his request, the petition is heard. 2 The Petitioner impugns an award made by the Sole Arbitrator appointed by Mumbai Textile Merchants’ Mahajan. 3 The petition proceeds to state that this is an award under the Arbitration & Conciliation Act, 1996 and therefore, the petition is filed to challenge the same, But during the course of argument it was submitted that Mumbai Textiles Merchants’ Mahajan had no jurisdiction to entertain and try the reference/ claim lodged by the Respondent. The argument is that there was no contract between the parties, therefore, there is no question of any invoice being received leave alone any term in the invoice pertaining to any arbitration being agreed and therefore, binding on the parties. It is only an arbitration agreement as understood by Section 7 of the Arbitration & Conciliation Act, 1996 which will confer jurisdiction on *2* arbp.308.10.17.sxw the Sole Arbitrator and nothing other then what is contemplated therein would satisfy the statutory requirement. Therefore, the award is without jurisdiction and requires to be interfered with. 4 I am unable to accept this contention for obvious reasons. The award recites that the Petitioner before me filed the Written Statement. The Petitioner was served with notice to remain present at the hearings which were scheduled on 25.06.2009, 25.07.2009, 22.08.2009 and 29.10.2009 but the Petitioner failed to remain present. It appears that there is application made in August, 2009 by the Petitioner, copy of which is annexed at page 26 to the paper book, raising a plea of jurisdiction of the Arbitrator. However, after filing this application and receiving the response of the Respondent thereto, the Petitioner has not remained present to argue the said application and to have the preliminary objection decided. Further from the record it appears that the application was made by the Petitioner before the Arbitrator that subject to outcome of the application presented challenging the jurisdiction, the Petitioner be permitted to cross-examine the Claimant on such terms as the Arbitrator deems fit. Now making of such an application despite raising the issue of jurisdiction, would mean that the Petitioner has waived the said plea. Further by not availing opportunity to remain present and contest the claim on merits, the Petitioner cannot now challenge the award either as being ex-parte or without jurisdiction. 5 Perusal of the subject petition would show that attempt is made to re-argue the matter on merits which is not permissible in law as this is not a court of appeal. The Petition is, therefore, devoid of any merit and is accordingly dismissed. (S.C. Dharmadhikari, J)