1 arbp608.10.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.608 OF 2010 Vijayshankar Harihar Sharma .. Petitioner versus M/s. Astoun Brothers & ors. .. Respondents. Mr. K.K.Pandey, advocate for Petitioner. Mr.M.D.Mali i/b. M.D.Mali & Co. for Respondent No.1. CORAM: S.C.DHARMADHIKARI, J. DATED: 14TH FEBRUARY, 2011 P.C. 1. Heard. This Petition under section 34 of the Arbitration and Conciliation Act, 1996 challenging the Award dated 13th February, 2007 was presented to the City Civil Court at Bombay but on objection being raised to its jurisdiction and competency, the Petition came to be returned to the Petitioner’s advocate for presentation to proper forum. Accordingly, this Petition has been filed in this court. 2 arbp608.10.sxw 2. The contention of the Petitioner’s advocate is that the Award amount has already been paid in full and in fact documents produced by the Respondents claimants would evidence this fact. However, the Award is exparte and denies the Petitioner an opportunity to present his version and argue the claim on merits. In such circumstances, the Award be set aside. 3. On the other hand, it is contended on behalf of the Respondent’s advocate that the Award is rendered on 13th February, 2007. It records that the Petitioner had notice of the proceedings. If the Petitioner had indeed made payment, then, with two adjournments being granted, he should have been able to produce necessary proof. He was unable to produce it despite sufficient opportunity and therefore, the Arbitrator rightly proceeded exparte. 4. After hearing both sides and bearing in mind the contention that the Petitioner’s claim stands satisfied and that can be proved with reference to the documents produced by the respondents claimants themselves, it would be fair, just and proper to set aside the Award, but on terms. If the terms are not complied with, then the Award stands and the 3 arbp608.10.sxw Petitioner has to abide by it. On his failure to abide by it, the Respondent No.1 can execute the Award. Hence, the Petition is disposed of by following order: (i) On the Petitioner depositing in this court a sum of Rs.15,000/- within a period of four weeks from today and producing proof of such deposit, the Arbitral Tribunal shall revive the proceedings and thereupon, Bharat Merchants Chamber and the Arbitrator appointed by the said Chamber will render fresh award within a period of four months from the production of receipt of such deposit. (ii) Needless to mention that the Petitioner must cooperate in early disposal of the said reference. (iii) The Petitioner should also intimate the Respondent’s advocate about the deposit of the amount and thereupon, a joint application can be made to the said Chamber by them. (iv) In the event, the Petitioner fails to deposit this amount, the Award stands and the present Petition will stand dismissed without any further reference to the Court. (v) If the condition is complied with, the Arbitral 4 arbp608.10.sxw Tribunal to permit both sides to prove their contentions by producing documents, and when it renders fresh Award, it shall not be influenced in any manner by the contents of the Award, which is set aside. (S.C.DHARMADHIKARI, J.)