arbp996-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.996 OF 2010 K.V.Ramakrishnan & Anr. .. Petitioners Versus TATA Motors Ltd. & Anr. .. Respondents Ms.Suvarna Joshi i/b. Vinay Menon for petitioners Mr.Chinmay Gupte i/b. Mohit Gadakari & Co. for respondents CORAM: S.C.DHARMADHIKARI, J. DATE : 28th FEBRUARY 2011 P.C. 1] The petitioners have challenged the Award made by the sole arbitrator directing the petitioners who are borrowers and guarantors to pay to the respondents a sum of Rs.7,30,217.84 and Rs.3,19,888.97 respectively which is overdue compensation and interest. 2] The only submission made while challenging the Award is that the learned Arbitrator after taking on record an application from the petitioners for change of venue, has without passing any arbp996-10.doc 2 orders thereon, proceeded ex parte and, therefore, the proceedings are vitiated for want of compliance with principles of natural justice and consequently the award is contrary to public policy and liable to be set aside. 3] The argument is that such an application was made on 29th December 2010 by an Advocate engaged by the petitioners. Respondents’ representative objected to the same but undertook to file written objections on the subject of venue of arbitration, on the next date. However, the award does not show that either the application is rejected or any orders are made. Learned Arbitrator, therefore, erroneously proceeded ex parte. Equity and justice requires that the Arbitrator should have passed an order on this application. 4] It is not possible to accept this contention because the petitioners do not dispute that they are signatories to the agreement under which the finance facilities were extended. That agreement clearly provided that the arbitration would be at Mumbai. arbp996-10.doc 3 Therefore, when the notice was sent to the petitioners and they were directed to appear before the arbitrator, either in person or through Advocate, the petitioners appeared as is clear from the Award itself. It is clearly pointed out that when a fresh notice was issued, it was mentioned in the notice that if the petitioners did not remain present, the Tribunal would proceed ex parte. None appeared on behalf of petitioners despite two notices having been sent to them and duly received. In such circumstances, from the Award itself, it is clear that the petitioners deliberately stayed away from the proceedings before the arbitral tribunal. 5] Now it is argued that an application was made for change of venue and a compilation of documents is sought to be tendered. However, it was the plain duty of petitioners to have appeared before the tribunal even after the second notice was received by them. It is stated in the petitioner that the application for change of venue was made on 29th December 2009, which clearly means that the application must have been forwarded or personally filed before the Tribunal. There is no question of the petitioners, thereafter, arbp996-10.doc 4 remaining absent. They did not insist upon any orders being passed on the application. That apart, they could have participated in the proceedings, even under protest. They did nothing of this kind. They do not deny their liability to pay monies. In fact the matters were kept under the caption “for settlement”. Respondents were ready and willing to receive the amounts in installments. However, a very unusual and unreasonable request is made that if the petitioners are unable to pay the amounts by installments, then, the Award should not be executed as a decree of this Court but instead the petitioners be permitted to revive the petition under section 34 of the Arbitration & Conciliation Act, 1996 to challenge the award. Naturally this was objected by the respondents and in my opinion, rightly. In the circumstances, finding that the Arbitrator has proceeded ex parte for justifiable reasons and on account of the fact that the petitioners stayed away from the proceedings deliberately, there is no reason to interfere with the Award. The petition is devoid of any merits and the same is dismissed accordingly. No costs. (S.C.DHARMADHIKARI, J)