SOUMEN SEN,J. - (1.) The Court : This is an application for review of an order dated 2nd August, 2016. There cannot be any doubt that this application is a clear after thought in order to scuttle the arbitration proceeding that has been commenced pursuant to the order dated 2nd August, 2016
(2.) An argument is advanced on behalf of the petitioner that the learned counsel representing the petitioner without any authority has conceded to the appointment of an Arbitrator and the said order cannot bind the petitioner.
(3.) Mr. Abhrajit Mitra, learned senior counsel appearing on behalf of the petitioner submits that in absence of any specific direction passed by the Hon'ble Division Bench while setting aside the award that the Arbitrator shall hear the matter afresh or that the matter is remanded for a fresh adjudication no application under section 11 of the Arbitration and Conciliation Act is maintainable as the arbitration agreement has merged in the award. The learned senior counsel in order to impress upon the Court that the proceeding has attained finality and there is no fresh dispute to be adjudicated hence no appointment of an arbitrator could be made has relied upon the judgment of a Single Bench in 'Shakambari and Co. v. Union of India (South Eastern Railway)' reported at 2009 (1) CHN 260 , paragraphs 15, 16 and 17 and decision of the Supreme Court in 'K.K. John v. State of Goa' reported at (2003) 8 Supreme Court Cases 193 , paragraphs 2.3.5., 6 and 7. It is submitted that in the said decisions it has been categorically held that no second reference could be made on identical dispute when there in no such leave granted by the Court setting aside the award. It is submitted that the arbitration agreement has merged in award as all disputes referred to arbitration by parties have been decided and nothing more remains to be decided. This argument is based on the observation made in 'Sudhir Kumar Saha and Others v. J.N. Chemicals Private Ltd. and Others' reported at AIR 1985 Calcutta 454.;