C.S. Karnan, J - (1.) THESE appeals by the first respondent in Tr.O.P.Nos.575 and 576 of 2006 on the file of this Court are against the Common order dated 13.09.2007 made by the learned Judge setting aside the award dated 02.08.2002 made ex parte against the respondents 1 and 2 herein.
(2.) THE short point that arises for consideration in these appeals is whether the learned Judge was right in setting aside the ex parte award. Before the learned Judge, it was the case of the respondents 1 and 2 that already one Mr. Kalyan Jhabak was appointed as the sole arbitrator and hence there was no need to appoint the third respondent as a second sole arbitrator, in terms of the agreement dated 19.04.2000 between the parties and therefore the impugned award dated 02.08.2002 passed ex parte is liable to be set aside. To be precise in their submission, the respondents 1 and 2 have claimed that when the third respondent could not assume jurisdiction as second sole arbitrator and therefore, their counsel did not have authority to represent on their behalf before the third respondent. According to the learned Judge, records do not show that the respondents 1 and 2 were intimated about the decision made on 06.06.2002 setting them ex parte and the date of hearing fixed to 21.06.2002 and thereby rejecting the appellant's submission that respondents 1 and 2 having chosen to remain ex parte, there is no need to issue notice indicating a further date of hearing. According to section 18 of the Arbitration and Conciliation Act, 1996, parties shall be treated with equality and each party shall be given a full opportunity to present their case. The order under Appeals is in conformity with Section 18 of the Act. Learned Judge has found on fact that the respondents 1 and 2 have shown sufficient cause for their non-appearance on 06.06.2002. Such a finding of fact has been arrived at by the learned Judge while exercising her discretion on sound principles of law. By affording an opportunity to the respondents 1 and 2, no serious prejudice will be caused to the appellant herein. Since we do not find any infirmity in the order of the learned Judge, we think it is unnecessary to refer the decisions cited by the learned counsel for the appellant herein as the learned Judge herself while exercising discretion relied upon various decisions of courts and considered them in extenso and written a detailed order.
(3.) BEFORE parting with, we would like to point out that the learned Judge's observation "for this limited question, without going into the merits of the award passed, the petitions are allowed" requires modification. Learned Judge having found that the ex parte award is illegal and the sudden withdrawal of the first arbitrator and thereafter the appointment of the third respondent as arbitrator are totally wrong without any intimation to the respondents 1 and 2, ought not to have observed that the merits of the award have not been gone into. Once the award is set aside, it does not exist. Therefore, we find merit in the Cross Objection of the respondents 1 and 2. In the result, we dismiss the Appeals, finding no merit in them, while allowing the Cross Objection. There will, however, be no orders as to costs. To allay apprehension of the parties, it is open to them to move for appointment of a fresh arbitrator. Consequently, connected Miscellaneous Petitions are closed.;