Arindam Sinha - (1.) This arbitration petition is for setting aside award. Mr. Mitra, learned senior advocate appears on behalf of respondent and elaborates on his preliminary point of objection to maintainability of it. He draws attention to annexure 'B' in the petition, which is copy of application made by petitioner under section 16 of Arbitration and Conciliation Act, 1996. He submits, order dated 24th August, 2019 was made on the application under sub-section (5) in section 16. He submits, nomenclature of the order is of little consequence. Even though it has been called partial award, it is an order under sub-section (5) in section 16. He relies on following in the order: "Thus the tribunal does not find any merit in the respondent's said application under section 16 of the Arbitration and Conciliation Act, 1996 and as such the same is rejected. The Respondent's application is thus disposed of.
(2.) The aforesaid pronouncement will be a part of the main award to be passed in the Arbitral proceeding."
(3.) The application was made under sub-section (2) in section 16. The Tribunal decided under sub-section (5). Petitioner, contending to be aggrieved, may make an application for setting aside arbitral award that will be made upon continuation of arbitral proceedings. He relies on two judgments of Supreme Court and view expressed by a learned single Judge of High Court of Delhi. They are :- (i) M.S. Commercial Vs. Calicut Engineering Works Ltd. Reported in (2004) 10 SCC 656, paragraphs 3 and 5. (ii) National Thermal Power Corpn. Ltd. Vs. Siemens Atkeingesellschaft reported in (2007) 4 SCC 451, inter alia, paragraph 18, wherein following was said: "Under sub-section (5), it has the obligation to decide the plea and where it rejects the plea, it could continue with the arbitral proceedings and make the award. Under sub-section (6), a party aggrieved by such an arbitral award may make an application for setting aside such arbitral award in accordance with Section 34. In other words, in the challenge to the award, the party aggrieved could raise the contention that the Tribunal had no jurisdiction to pass it or that it had exceeded its authority, in passing it. This happens when the Tribunal proceeds to pass an award...." (iii) Cadre Estate Pvt. Ltd. Vs. Salochna Goyal And Ors. Reported in 2010 (119) DRJ 457, paragraphs 23 and 24. ;