1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.648 OF 2003 IN ARBITRATION PETITION NO.216 OF 2003 Broadcast Worldwide Pvt. Ltd., a Company incorporated under the Companies Act, 1956, having its Office at Unit No.15, Venus Apartments, Cross Road 4, Lokhandwala Complex, Andheri (W), Mumbai – 400 053. ..... Appellant V/s. Mr.Nitish Bharadwaj, R/o 4th Floor, Allana Chambers, 6, Bomanji Petit Road, Breach Candy, Mumbai – 400 036. ..... Respondent Mr.Anil Menon for the Appellant. Mr.B.P.Apte, Sr.Counsel a/w Neel Helekar, for the Respondent. CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ. DATED : JUNE 13, 2008. ORAL JUDGMENT ( Per Sri R.M.S.Khandeparkar, J.) 1. Heard. 2. The appeal arises from the order dated 16-06-2003 passed in 2 Arbitration Petition No.216 of 2003. By the impugned order, the petition filed under Section 34 of the Arbitration Act, 1996 stands dismissed being without any substance. 3. The appellant seeks to challenge the impugned order on the ground that the learned Single Judge did not consider the challenge in the Arbitration petition in terms of ground (a), even though the same was canvassed before the learned Single Judge and the impugned order merely restricts to the ground referred to the impugned order. 4. It is not in dispute that the Arbitration Petition included as many as 10 grounds of challenge to the Award delivered by the Learned Arbitrator on 08-01-2003. However, the impugned order clearly specifies that in the course of hearing of the petition under Section 34 of the Arbitration Act, the arguments were confined to only one point and that it was once the arbitrator had found that the parties had realized that the agreement was not workable, the arbitrator was not justified in making an award for making payment to the Respondent as per the agreement till the date of the award. 5. Once the order passed by the Court discloses that the petition was sought to be argued on only one point and there is nothing on record which could disclose that the apart from the such point, other point was 3 canvassed before the learned Single Judge, it is settled law that the appellant is not entitled to be heard on any point other than the one which was canvassed before the learned Single Judge in the course of the hearing of the petition under Section 34 of the Arbitration Act, unless the appellant had filed affidavit to that effect before the learned Single Judge making the necessary averments therein. 6. It is true that ground (a) in the petition under Section 34 read thus : a) The Ld. Arbitrator has awarded an amount of Rs.61,50,000/- towards remuneration to the Respondent when it is admitted position that the Respondent rendered no services and had therefore not earned the remuneration and thus had no right to receive the remuneration. The Award is thus bad-in-law. 7. As stated above, the impugned order however clearly discloses that only one ground was canvassed in the course of hearing of the petition. In the circumstances, if there was any mistake on the part of the Ld. Single Judge or failure on the part of the Learned Single Judge to take note of an argument canvassed by the appellant, it was necessary for the appellant to file an affidavit to that effect before the Learned Single Judge 4 prior to preferring the present appeal and make necessary averments to that effect in the memo of appeal regarding the filing of such affidavit. Undisputedly, the appellant has not filed any such affidavit before the learned Single Judge. In the circumstances, it is not possible to accept the contention which is sought to be canvassed during the course of arguments that apart from the point which is referred to the impugned order, the petition was also argued on the point quoted above. 8. As far as the point which was canvassed and referred to the impugned order, the award on the face of it discloses that the Arbitrator has held that the termination of the agreement between the parties was unauthorized. Once the said finding of the learned Arbitrator was not challenged, as rightly observed by the learned Single Judge, no fault can be found with the award of the Arbitrator directing the payments in terms of the agreement till the date of the award, as that itself would show the subsistence of the agreement till the date of the award. 9. Since the above finding cannot be found to have been challenged before the learned Single Judge and as the appellant is not entitled to challenge the impugned order on any ground other than raised before the learned Single Judge, we find no case made out for interference in the impugned order and the appeal therefore fails and hereby dismissed. 5 The respondent shall be entitled to withdraw the amount deposited in the Court along with accrued interest if any, after expiry of 8 weeks from today. ( P.B.MAJMUDAR, J.) ( R.M.S.KHANDEPARKAR, J.)