The Applicant to these proceedings had invoked arbitration by a notice dated 31 March 2011. A Memorandum of Understanding was executed between the parties on 23 October 2006. An additional Memorandum of Understanding was entered into on 27 March 2008. Following this, a Deed of Conveyance was executed on 28 March 2006 which has admittedly been registered. In pursuance of the agreement, the applicant to the Chamber Summons has been paid an amount of Rs.87.70 crores leaving a balance of Rs.22.99 crores for which cheques have been placed in deposit with an escrow agent. The Applicant to the Chamber Summons ("the Applicant") invoked arbitration on 31 March 2011. By that letter, the Applicant expressed its readiness and willingness to deliver possession of the building which forms part of the agreement against the payment of the sum of money for which cheques were lodged with the escrow agent. Failing this, it was stated that recourse would be taken to arbitration.

2. An Arbitration Application under Section 11 of the Arbitration and Conciliation Act, 1996, was instituted before this Court by the Respondent to the Chamber Summons in which an order was passed by the designate of the Chief Justice on 1 July 2011, appointing a sole Arbitrator by consent of parties. Since the sole Arbitrator indicated his unwillingness to act, by a subsequent order dated 22 July 2011, a substitute Arbitrator was appointed, once against by consent of parties.

3. The claim and counter claim have been lodged before the Arbitrator. The sole Arbitrator has passed an interim order on 5 January 2012 under Section 17 requiring the Applicant to hand over possession of the building to the Respondent to the Chamber Summons, subject to condition including that the Respondent should furnish an irrevocable Bank Guarantee of Rs.27 crores.

4. The Chamber Summons before the Court has been instituted by the Applicant seeking to: (i) Withdraw the consent granted by it for the appointment of an Arbitrator, on the basis of which the orders dated 1 July 2011 and 22 July 2011 were passed in the Arbitration Application; (ii) Recall of the orders dated 1 July 2011 and 22 July 2011. The basis on which the Chamber Summons has been taken out is that when the Applicant furnished its consent before the Court to the appointment of an Arbitrator, the Respondent had failed to disclose three documents dated 24 December 2008, 31 July 2009 and 6 December 2010 under which the Respondent had created equitable mortgages in favour of ABN Ambro Bank (under the first two documents) and a simple mortgage in favour of a consortium of twelve banks in consideration for loans or credit facilities. According to the Applicant, these three mortgages were executed on the premise that the Respondent is the absolute owner of the properties involved in the dispute under the Deed of Conveyance dated 28 March 2008. According to the Applicant, the Deed of Conveyance is not absolute, but conditional and that title to the Respondent has not been conveyed. In the alternative, the Applicant states that it is entitled to seek recession of the conveyance and has filed a counter claim on 30 November 2011. According to the Applicant, the fact that these mortgages had been created was disclosed by the Respondent on 24 February 2012 in certain proceedings arising out of an appeal against the interim order of the sole arbitrator. The contention of the Applicant is that if these facts were known, it would not have accorded its consent to the appointment of an arbitrator and since the order has been obtained without a full disclosure of facts, the consent should be permitted to be recalled and the order be recalled.

5. On the other hand, it has been urged on behalf of the Respondent that: (i) The application is in the nature of a review and in view of the judgment of the Allahabad High Court in Manish Engineering Enterprises vs. Managing Director, IFFCO N.Delhi, (AIR 2008 Allahabad 56)a substantive review on merit