IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 Arb.A.No. 24 of 2010(E) -------------------------------- [ARB. O.P .NO.1903/2008 OF II ADDL.DISTRICT COURT,ERNAKULAM] .................... APPELLANTS/PETITIONER 1 & 2: ----------------------------------------------- 1. BIJU XAVIER, S/O.LATE JOHN, KALLIPARAMBIL HOUSE, MARUVAKKAD, CHELLANAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 2. BENEDIT.K.H., S/O.LATE HENRY, KAITHAVALAPPIL HOUSE, KANNAMALY, MUMBALANGHI VILLAGE, KOCHI TALUK. BY ADVS. SRI.DINESH R.SHENOY, SRI.G.HARIKRISHNAN (TRIPUNITHURA), SRI.MAHESH MENON. RESPONDENT/RESPONDENT: ------------------------------------------- CHRISTY FERNANDEZ, S/O. JOSEPH FERNANDEZ, KALLADA HOUSE, PACHALAM, KOCHI – 682 012. BY ADV. SRI.P.P.RAJESH. THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD ON 21/01/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT & K.SURENDRA MOHAN, JJ. *********************** Arb.Appeal No.24 of 2010-E ***************************** Dated this the 21st day of January, 2011 JUDGMENT BASANT, J. This appeal is directed against the impugned order passed by the District Court dismissing an application under Section 9 of the Arbitration and Conciliation Act, 1996, seeking interim directions for protection of the interest of the appellants - to attach property belonging to the respondent herein. The relevant portion of the impugned order reads as follows: “Petitioners and counsel are absent. Counsel for respondent has vehemently requested for dismissal of the petition, as the petitioner did not even take steps to refer the dispute to the Arbitrator. They were also not prepared to appear before the Adalath. Accordingly petition is dismissed with costs.” 2. The learned counsel for the appellants submits that the appellants happened to be absent under the impression that their counsel shall be appearing before court. The dismissal for default is not justified, it is submitted. The fact that the appellants were allegedly not prepared for reference to the Arb.Appeal No.24 of 2010-E 2 Adalat is certainly not a ground to reject their prayer, it is submitted. 3. Party respondent, though served, is not represented. 4. We have considered the submissions of the learned counsel for the appellants. We are satisfied that the impugned order deserves to be set aside and this appeal deserves to be allowed. 5. In the result: a) This appeal is allowed; b) The impugned order is set aside; c) The District Judge, Ernakulam, is directed to dispose of Arb.O.P.No.1903 of 2008 afresh in accordance with law; d) The parties shall appear before the District Judge on 01.02.2011. The learned District Judge shall dispose of the matter as expeditiously as possible thereafter . e) The Registry shall communicate this judgment to the learned District Judge forthwith. 6. The learned counsel for the appellants points out that there is urgent necessity to dispose of this case and the court which passed the order is now vacant and there is no Presiding Arb.Appeal No.24 of 2010-E 3 Officer for the court. We do, in these circumstances, direct the Principal District Judge to dispose of the matter afresh. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/