Badar Durrez Ahmed, J.

1. This petition has been filed seeking the setting aside of the ex parte award dated 18.01.2005 passed by the sole Arbitrator (respondent No.3). The two grounds taken by the petitioner seeking the setting aside of the impugned award are under sections 34 (2) (a) (i) and 34 (2) (a) (iii) of the Arbitration and Conciliation Act, 1996.

2. Section 34 (2) (a) (i) permits the setting aside of an arbitral award by the court if the party making the application furnishes proof that the party was under some "incapacity". Section 34 (2) (a) (iii) permits the court to set aside an arbitral award if the party making the application furnishes proof that such party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case.

3. In order to examine whether the petitioner has been able to make out a case under the aforesaid provisions, it would be necessary to refer to the factual backdrop. By an agreement dated 26.05.1997 entered into between the Municipal Corporation of Delhi (MCD) [respondent No.2] and the respondent No.1, the respondent No: 1 was awarded the contract of repair of motor pumps, diesel engines, etc., within the jurisdiction of the MCD. By the said agreement, the parties had agreed to settle their disputes of any nature in terms of the arbitration clause contained in the agreement. The clause essentially provided that the disputes were to be referred to the sole arbitration of the Commissioner, MCD or any person nominated by the Commissioner on his behalf. Disputes arose between the respondent No.1 and the respondent No.2 as a result of which, the respondent No.1 sought to refer the disputes to arbitration. As the respondent No. 2 was not appointing an arbitrator, the respondent No.1 filed an application being AA No. 16/2004 in this court on or about 19.01.2004. The memo of parties of that Arbitration Application No. 16/2004 disclosed that the MCD was the respondent No.1, the Delhi Jal Board (at its address Varunalaya, Jhandewalan, New Delhi) was the respondent No.2 and the Commissioner, MCD was the respondent No.3. In the said application, it was stated in paragraph three that the Delhi Jal Board was an autonomous body functioning under the MCD and while acting under the MCD had interacted with the respondent No.1 for repairs of its pumps and payments to the applicants. On 09.08.2004 when the said Arbitration Application 16/2004 came up for disposal, the court recorded that no reply had been filed by the respondents and as an arbitration clause existed between the parties, Justice S.S. Chadha, a former Judge of this court, was appointed as the Arbitrator. The petitioner (the Delhi Jal Board) was represented by Mr. Suresh Tripathy though wrongly shown in the order as representing the MCD. This is so stated by Mr. Suresh Tripathy himself who now appears for the petitioner (Delhi J al Board).

4. Mr. Suresh Tripathy submitted that immediately upon the passing of the said order dated 09.08.2004, he had communicated the same to the Law Officer of the petitioner but the Law Division was unable to locate the exact Division and forwarded the file upwards to different officials, including senior officers, namely, the Chief Engineer and the Member. It was further submitted that ever since the Division got disbanded, the work was scattered with as many as 9 Executive Engineers of the petitioner and three of the MCD. It is submitted by Mr. Tripathy that it is because of this confusion that the petitioner was unable to appear before the Arbitrator. It was further stated that as the exact Division was not pointed out in the memo of parties contained in the said Arbitration Application, the file went from one to another in addition to officials of the MCD and, finally, to the CEO of the petitioner when the decision was taken to appoint one Shri LS. Tosaria, Executive Engineer of the petitioner as the Nodal Officer for the purposes of th