ORDER

1. Present petition under Article 226 of the Constitution of India has been preferred by petitioner/contractor being crestfallen by order dated 6.1.2022 passed by Commercial Court, District Gwalior, whereby learned Court below sought original record of arbitrator before considering the application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as to 'the Act1) finally.

2. Precisely stated facts of the case are that petitioner is a proprietor firm owned, managed and controlled by its proprietor Shri Girish Chandra Dubey engaged in construction business as contractor. Respondent-Bharat Sanchar Nigam Limited (B.S.N.L.) is engaged as service provider in the field of telecommunication and is instrumentally of such State within the meaning of Article 12 of the Constitution of India.

3. It appears from the submissions and record that some contract was given by respondent to petitioner for laying O.F.C. Cable but petitioner could not complete the work within the stipulated time and therefore, contract was cancelled vide order dated 8.7.2003 and placed under blacklist. Matter went into arbitration and vide order dated 9.5.2011 (Annexure P/1) Sole Contractor (Shri M.N. Singh, General Manager Telecommunication (Retired) Bhopal) passed arbitral award and partly allowed the claim of petitioner.

4. Being aggrieved by that, respondent preferred application for setting aside arbitral award under Section 34 of the Act before the Seventh Additional Sessions Judge, Gwalior. Vide order dated 30.11.2011, application under Section 34 of the Act was dismissed. Thereafter, arbitration appeal under Section 37 of the Act was preferred before Division Bench of this Court vide Arbitration Appeal No.01/2012 (General Manager BSNL Vs. Anil Kumar Tripathi). Vide order dated 22.04.2016, Division Bench of this Court quashed the order dated 30.11.2011 passed by the Court below and remitted the matter to the Court below for adjudication of the objections preferred by the respondent in the application under Section 34 of the Act by passing a speaking order.

5. Again matter was considered and vide order dated 18.10.2016, learned Court below set aside the award dated 9.5.2011 passed by the arbitrator and matter was remanded back to the arbitrator for adjudication on the basis of documents and pleadings advanced by the parties.

6. This time taking exception to the said order, petitioner preferred an Arbitration Appeal No.3/2016 (Anil Kumar Tripathi Vs. Mahaprabhandak, Doorsanchar Nigam Limited) before the Division Bench of this Court and vide order dated 11.2.2019 considering the judgment rendered by the Hon'ble Supreme Court in the case of Kinnari Mullick and Another vs. Ghanshyam Das Damani, 2018 (11) SCC 328, in which earlier judgment of the Supreme Court Mcdermott International Inc. Vs. Burn Standard Co. Ltd and Others, 2006 (11) SCC 181, learned Division Bench of this Court came to the conclusion that while deciding the application under Section 34 of the Act, the Court below has no jurisdiction to remand the matter to the arbitrator for afresh decision.

7. Therefore, impugned order of remand was set aside and while restoring the proceedings under Section 34 of the Act before the Court below with a direction to the Commercial Court to exercise the jurisdiction/ discretion conferred under Sub-Section (4) of Section 34 of the Act and adjourn the proceedings for a period of time determined by it in order to give the Arbitral Tribunal and an opportunity to resume the arbitral proceedings or take such other action as in the opinion of Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award.

8. Thereafter, matter got revived before Commercial Court and proceedings are still pending. Many a time counsel sought time, thereafter, shadow of Covid-19 pandemic loomed over court proceedings and record was not available. Therefore, on 6.1.2022 Commercial Court directed for requisition of original record of arbitra