1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 64 OF 2009 Ratan Agarwala alias Ratan Garg, Age- 51 years, Indian Inhabitant, carrying on business in the firm in and style of M/s. J.H.Traders,, Having office at 91/1, Seth Srilal Market, P.O. Siliguri, 734 401, Dist. Darjeeling, West Bengal. ...Petitioner. Vs. Sulochana Jagdishprasad Agrawal, Adult, Indian Inhabitant, carrying on business As Proprietress in the name and style of M/s. Juharmal & Sons, having address at 3-A, Jaihind Building, 2nd Floor, Bhuleshwar, Mumbai – 400 002. ...Respondent. Mr. Raj Patel i/by Mr. A.M.Saraogi for the Petitioner. Mr. Anil Agarwal for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 15TH JULY, 2009. ORAL JUDGMENT:- 2 1 The Petitioner has challenged an arbitral award and invoked Section 34 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”), mainly on the ground that no full opportunity was given by the Arbitral Tribunal, as he was unable to attend the proceeding at Mumbai, as he is resident of West Bangal. For the insufficiency of time, he could not attend the proceeding. 2. The Arbitral Tribunal, after considering the issue about the jurisdiction by an order dated 8th May, 2008 proceeded with the Arbitration, as the Arbitration Rule of Bharat Merchants’ Chamber (for short, “the Chamber”), provides that any dispute relating to the transaction, would be subject to the Arbitration at Mumbai only. 3 The transactions between the parties were based on the bills containing the Arbitration clause. The Defendant had admittedly, accepted the goods and even remitted certain amount. It shows that he has full knowledge of the terms and conditions read with the rules and the trade practice of the Chamber. The Arbitral Tribunal, after considering the material available on record, including the documents forwarded by the Petitioner, came to a clear conclusion that the amount was due and payable and accordingly passed the award against the Petitioner after adjusting the 3 amount already paid. 4 The signed confirmation letters and bills and the Accounts on record which are part of the proceedings, goes to the root of the matter. The submission, that the Petitioner wanted to dispute the same, as there was no such transaction took place, has no force. The Petitioner’s part payment of about Rs.4 lacs further supports the case that the transaction took place and the parties acted accordingly. 5 It is desirable to give full opportunity to both the parties but in the case, in spite of opportunity given and, basically in commercial transaction like this, where in spite of full knowledge about the notice, Arbitration Proceeding and the dates, but for one reason or other avoided to appear personally, therefore, insufficiency of time on one occasion, even if accepted, still it is not the case of no notice or opportunity. No sufficient case is made out. 6 Having once agreed to the terms of the Chamber, which provides the settlement of such dispute only at Mumbai then this excuse/ defence of no time to reach and prepare, in no way sufficient to interfere with the 4 reasoned order passed by the Arbitral Tribunal, based upon the Chamber rules and the trade practice between the parties, apart from the material on the record. This ignorance and the defence now as raised, in my view, is insufficient to interfere with the reasoned order passed by the Arbitral Tribunal, based upon the confirmation of letters/ Accounts signed by the Petitioner. There is no misconduct. The Arbitral Tribunal is empowered to pass such award, specially when the party deliberately avoid to participate in the Arbitration proceedings in order to frustrate and delay the admitted claim. (Kailesh Rani Dang Vs. Rakesh Bala Aneja & Anr., AIR 2009, S.C. 1662). 7 The view so taken by the Petitioner, cannot be said to be perverse or contrary to the record. 8 The Petition is accordingly dismissed. No order as to costs. (ANOOP V. MOHTA, J.)