Per Anoop V.Mohta, J

By consent, heard finally at admission stage.

1. This appeal is filed by the appellant against judgment dated 29th July, 2015 as the appellant's/original respondent's section 34 petition under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) is allowed whereby the award passed by the learned Arbitrator dated 9th May, 2011 has been set aside.

2. Admittedly, there exists an Arbitration agreement between the parties. The Arbitrator as appointed by consent, being close to the family members proceeded to deal with the family dispute. The relevant agreement and clauses read as under :

“And whereas Shri Nitin Harjivandas Rajyagor and Shri Rajesh Pravinchandra have made certain claims and counter claims in respect of unresolved issues as well as in respect of certain issues resolved earlier.” And whereas said parties hereto have agreed to refer the said disputes to sole arbitration of Shri Chandrakant N.Shah CA and have assumed him that help to all the intervenors, as may be required by the said sole Arbitrator will be extended to him. And whereas both the parties shall hand over the issues/matters not resolved as well as pending, requiring consideration of the Arbitrator in separate paper duly signed by each of them.

NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:

1. All the disputes, between the parties hereto shall be referred to the sole arbitration of Shri Chandrakant N.Shah (hereinafter referred to as “the Arbitrator”) for his final determination and award.

2. The Arbitrator shall hear both the parties hereto and such of their relatives as the Arbitrator in his sole discretion deem fit and their witnesses interveners and look into such documents, records and evidences as they may produce and give his award within 1 ½ months.

3. The Arbitrator shall have been power to proceed exparte in case either party fails to appear before him after reasonable notice.

4. The cost of the arbitration shall be named by the Arbitrator and shall be paid by the parties hereto which shall be based on the time and efforts involved. The parties shall pay an advance of Rs.10,000-/(Rs Ten thousand only) on or before execution of this agreement.

(5) The award of the Arbitrator shall be binding on both the parties hereto and to their family members to whom they represent and shall not be revoked under any circumstances.

In witness whereof the parties hereto have hereunto set and subscribed their respective hands the day and the year first herein above written.

3. Both the parties based upon the agreement appeared and proceeded before the learned Arbitrator. The unresolved disputes as agreed were placed through a list of issues between the parties. This itself means that the parties could not settle the disputes which were admittedly going on since long, apart from testamentary and co-operative litigation by and between the parties.

4. Admittedly, no oral evidence was led by the parties. An application dated 17th April, 2006, under section 13 of the Arbitration, was also filed by the respondent inter alia for two reasons. One to follow the procedure under the Arbitration Act and second for objection to the delay in the proceedings. This was admittedly after more than nine dates of hearing as stated. There is no bar that the party cannot raise and/or file such applications. The learned Arbitrator has rejected these applications by a common order dated 27th March 2008 and observed as under :

“After careful consideration of the Applications dated 17th April, 2006 and dated 14th February 2008 on the facts and circumstances of the case and because on more than one occasion the applicant reposed the full faith in the Sole Arbitrator after raising the doubts as to the independence and impartiality of the Arbitrator, I reject both the applications as frivolous and without merit.”

S/d

Sole Arbitrator

Dated: 27th March 2008

Mumbai

5. Strikingly, the award was not immediately passed after rejection of those applications. The date of