JUDGMENT

Rajiv Shakdher, J.(Oral)

I.A. No.8610/2019

1. Allowed, subject to just exception.

ARB. A. (COMM.) 16/2019

2. This is an appeal filed under Section 37 (2) of the Arbitration and Conciliation Act, 1996 (hereafter referred to as `1996 Act') against the order dated 31.05.2019. I must indicate at the very outset that in the prayer clause, which obtains in the appeal, there is no reference to the earlier order of the arbitral tribunal, which is, dated 21.04.2019 - though, a substantial part of the argument which has been advanced before me by Mr. Dutta, learned senior Advocate, appearing on behalf of the appellant, is channelized towards impugning the validity of that order of the arbitral tribunal.

2.1. I must, however, indicate that in the list of dates, the appellant does make an assertion that the appeal is directed both against the order dated 21.04.2019 and 31.05.2019.

3. Therefore, I would grant some leeway to the appellant and, thus, allow it to contend before me as if the appeal is directed against both orders.

4. Be that as it may, the record shows that the respondent, who is the original claimant, had approached this Court by way of Section 9 petition, which was numbered as: OMP (I) (Comm.) No. 71/2019. This petition was finally disposed of by the Court on 16.04.2019. Since, a large part of the appellant's grievance veers around the order dated 16.04.2019, the relevant part of the order is extracted hereafter:

"The learned senior counsel for the petitioner prays for leave to withdraw the present petition with liberty to file the pleadings of the present petition as an application under Section 17 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') before the Arbitrator appointed in due compliance with the Act and the Arbitration Agreement between the parties.

The petition is dismissed as withdrawn with liberty as prayed for. Dasti under the signatures of the court master."

5. A perusal of the captioned order would show that the respondent/claimant sought leave to withdraw the Section 9 petition with liberty to file the pleadings of the Section 9 petition as an application under Section 17 of the 1996 Act, before the Arbitrator, who had to be appointed by the respondent/claimant.

5.1. As is obvious from the extract set forth above, the Court dismissed the Section 9 petition, as withdrawn, with liberty as prayed for by the respondent/claimant.

6. In consonance with the liberty given, the respondent did two things. First, via an e-mail of even date i.e. 16.04.2019, appointed an Arbitrator in the matter. Second, file the pleadings which are part of the Section 9 petition before the learned Arbitrator for obtaining interim relief.

7. The record shows that on 17.04.2019, the learned Arbitrator while giving consent to his appointment, posted the matter for further proceedings on 21.04.2019.

7.1. As a matter of fact, the learned Arbitrator also filed his declaration in accordance with the provisions of the 1996 Act along with his communication dated 17.04.2019.

8. Evidently, on the same date i.e. 17.04.2019, the counsel for the appellant wrote to the arbitral tribunal that the hearing fixed on 21.04.2019 was not convenient to him as it was an "Easter Sunday" and, therefore, he would be busy with religious ceremonies. This communication of the appellant received a response, from the learned arbitrator, on 19.04.2019. The learned arbitrator, in effect, communicated to the appellant's counsel Mr. Joseph Koshy that he could send his associate counsel as only procedural orders would be passed on 21.04.2019.

9. Accordingly, on 21.04.2019, Ms. Binita Shahi, advocate, appeared before the arbitral tribunal for the appellant. The record shows that the matter went beyond passing a procedural order, albeit, with consent of counsel, in particular, the consent of Ms. Binita Shahi who represents the appellant. Resultantly, arguments were heard by the learned arbitrator on the interi