1. By this petition under section 34 of the Arbitration & Conciliation Act, 1996 (for short “the Arbitration Act”), the petitioners challenge the award dated 22nd September 2009 passed by the learned arbitrator.

2. The petitioners are brothers and are sons of the respondent. The petitioners and the respondent appear to have taken several premises on rent. However, the dispute in the present petition relates only to the commercial premises bearing shop nos.1 and 2 situated at 46-48, Walka House, Tribhuvan Road (Grant Road), Mumbai (hereinafter referred to as “the suit premises”). The building in which the suit premises are situate belongs to HIMS Botawala Charities and is also known as Botawala Building. Prior to the year 1995, the suit premises were let out to one Vinod Agarwal. It is the case of the petitioners that they were carrying on business along with Vinod Agarwal in the suit premises prior to 1995 when Vinod Agarwal surrendered the tenancy to the landlords who created a fresh tenancy in favour of the respondent on or about 10th October 1995. First as well as all subsequent receipts are issued in the name of the respondent individually. According to the respondent, he was unlawfully evicted from the suit premises by his two sons, namely the petitioners, on or about 21st August 2002. On 20th May 2003, the respondent filed a suit, bearing Suit No. 1970 of 2002, in this Court against the petitioners on title (leasehold title) alleging that he was the tenant in occupation of the suit premises and that the petitioners had no right, title or interest therein and had wrongfully entered and trespassed in the suit premises. He accordingly prayed for a decree for eviction. On 21st October 2005, this Court by consent of the parties referred the dispute in the suit to arbitration at the hands of the sole arbitrator Mr. Justice D.R. Dhanuka (Retd.). The learned arbitrator passed his award on 22nd September 2009. That award is impugned in the present petition.

3. Learned counsel for the petitioner submitted that the learned arbitrator did not give proper and adequate hearing to the petitioners and consequently the award was liable to be set aside. In order to appreciate the contention, it is necessary to state a few facts which are given below.

4. Before the learned arbitrator, by consent of the parties, the plaint in Suit No. 1970 of 2003 was regarded as statement of claim. The petitioners filed their written statement. 22 arbitration meetings were held prior to 31st March 2009 and the 23rd meeting was held on 31st March 2009. Till that time, the entire evidence of the respondent was recorded and the matter was adjourned for evidence of the petitioners. In that meeting, the learned arbitrator noted that in the affidavit of evidence filed by the petitioners they had referred to large number of matters which were beyond the scope and ambit of the arbitral reference. They had sought to bring the disputes relating to other properties which were not the subject matter of the arbitration. The learned arbitrator therefore gave two options to the petitioners, one to file fresh affidavits of evidence in respect of the suit premises only and the other to restrict the affidavits which were already filed only to the suit premises. Mr. Talreja, learned advocate appearing for the petitioners, chose the first option and stated that the petitioners would file fresh affidavit of evidence only as to shop nos.1 and 2 (i.e. the suit premises). This fact was recorded by the learned arbitrator in paragraph 3 of the minutes of the 23rd arbitral meeting. The learned arbitrator accordingly passed an order granting liberty to the petitioners to file fresh affidavits of evidence within 2 weeks. Accordingly the petitioners filed two fresh affidavits of evidence on 13th April 2009. In the next arbitral meeting held on 16th June 2009, the advocates were heard. It was pointed out to the learned arbitrator that the two fresh affidavits dated 13th April