A.K.Banerjee, J. - (1.) The petitioner has share transactions in respect of listed shares with a stock broker being the respondent No. 1 above- named. There had been disputes and differences between the parties, the petitioner approached Securities Exchange Board of India (SEBI) for redressal of his grievance. SEBI advised him to approach the National Stock Exchange. Accordingly, the petitioner approached the National Stock Exchange. The National Stock Exchange advised him to lodge his complaint in the form of a claim application and choose one of the arbitrators from their panel for resolving the disputes by way of arbitration in accordance with the bye laws of the Stock Exchange. The petitioner had chosen five names from the panel. Similarly, the stock broker also did the same thing. The Stock Exchange found one Mr. P.K. Sanyal common in both the panels and as such Mr. Sanyal was appointed arbitrator as chosen by both the parties. Mr. Sanyal did not incline to act as arbitrator. The Stock Exchange finding no other alternative appointed one Mr. Ajoy Agarwal, who was the lone member left in the panel not chosen by any of the parties. Mr. Agarwal accordingly entered appearance. The pleadings were filed before him. The petitioner duly participated in the arbitration proceedings at the initial stage. The petitioner thereafter found that Mr. Agarwal was known to the respondents and he misconducted the proceedings by not disclosing his interest and/or relation with the broker being the respondent No.1. Application was made for his removal. In the application it was contended by the petitioner that one Ramesh Chandra Agarwal was representing the respondent No.1. The surname of Agarwal was common with the arbitrator and as such, he apprehended that the said Ramesh Chandra Agarwal was a close relative of the Arbitrator. The Arbitrator dealt with such issue and rejected such plea. The arbitrator recorded that he had no relationship either with the respondent No.1 or with the advocate appearing for them. The applicant being unsuccessful there approached this Court for identical relief. In A.P. No. 158 of 2003 this Court initially passed an interim order that the arbitration proceedings would go on but the award could not be published without the leave of the Hon'ble Court. Such order was passed on June 25, 2003 and continued by a further order dated July 11. 2003. The petitioner despite direction of this Court to the effect that the arbitration proceedings would go on had chosen not to appear before the Arbitrator. Repeated adjournments were asked for. The Arbitrator gave adjournments on several occasions as recorded in the award. The said application being A.P. No. 158 of 2003 was ultimately dismissed by this Court by a Judgment and/or order dated February 18, 2004 as according to the learned Judge the application was devoid of any merit. In the meantime, the petitioner filed another application being A.P. No. 154 of 2004. There also the petitioner could not obtain any interim order staying the arbitration proceedings. The arbitrator ultimately fixed the hearing of the proceedings on November 17, 2003. The Advocate-on-record of the petitioner wrote a letter to the arbitrator on November 17, 2003 with a request to adjourn the said meeting. The Arbitrator received the said letter and made his endorsement which reads as follows :- "Received letter. Meeting will be held today as scheduled. No adjournment can be given."
(2.) Such endorsement was made by the Arbitrator at 11.55 a.m. on the said date as appears from page 67 of the petition. The petitioner did not appear at the said meeting. The Arbitrator concluded the hearing and ultimately published the award by rejecting the claim of the petitioner. The said award was published on July 9, 2004.
(3.) After the petitioner came to know that the award was published they filed the present application being A.P. No. 372 of 2004, inter alia, praying for setting aside of the award.;