IA No. 11663/2023 (for restoration)
1. This application has been filed seeking setting aside of the order dated 31.05.2023 and restoration of appeal i.e. ARB. A. (COMM.) 25/2023 and IA No. 10851/2023. The applicant/appellant claims to be represented through an authorized representative i.e. Mr. Ajay Jain, who is the husband of the applicant/appellant. The said authorised representative has been heard for some time. He has broadly contended as under:-
i. That the counsel for the appellant withdrew the appeal on 31.05.2023, without any instructions and as the result of which, the applicant/appellant has been prejudiced.
ii. Attention has been drawn to an order dated 15.04.2023 passed by the concerned Arbitrator on an application under Section 13(2) and 13 (3) of the Arbitration and Conciliation Act, 1996 (the "A&C Act"), on the same day on which the impugned order was passed. It is submitted that during the pendency of the application under Section 13 before the concerned Arbitrator, the said Arbitrator ought not to have considered/disposed of the application under Section 17 of the A&C Act till the controversy regarding alleged bias was resolved.
iii. It is further submitted that the mandate of the Arbitrator who passed the impugned order has since been terminated and therefore, on that ground itself, the impugned order ought to be set aside and the new/substitute Arbitrator be directed to decide the Section 17 application afresh.
iv. It is further submitted that since many articles of the applicant/appellant are lying in the shop in question, the appellant's case cannot be equated with the facts of other case/s, in the context of which the Supreme Court passed an order dated 13.01.2023 in Special Leave to Appeal (C) No(s). 356/2023. As such, it is contended that the present appellant should be accorded differential treatment.
v. It is next submitted that no repairing activities have been carried out by the respondent in respect of any shops despite directions passed by the Supreme Court vide order dated 13.01.2023, in terms of which six months time was granted to carry out the requisite repairing work. As such, no relief on similar lines should be afforded to the respondent.
vi. Lastly, it is submitted that if at all the goods of the appellant are required to be removed from the shop in question, the responsibility of the same should be on the respondent.
2. On contrary, learned counsel for the respondent has submitted as under:-
i. The order dated 31.05.2023 was a consent order and the attempt on the part of the appellant to resile out of the same should not be permitted. It is further emphasized that the proceedings under Section 13 of the Act against the previous Arbitrator has no bearing whatsoever on the validity of the impugned order which has to be assessed on its own merit. Attention is once again drawn to the fact that in the context of identical application/s under Section 17 of the A&C Act filed with respect to other shops in the premises, the matter came to be eventually considered by the Supreme Court and the following order dated 13.01.2023 came to be passed:-
" Having heard Shri Shyam Divan, learned Senior Advocate appearing on behalf of the petitioner(s) in SLP(C) No. 496/2023, other learned counsel appearing on behalf of the respective petitioner(s) in the respective Special Leave Petition........