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Civil Appeal No. 6300 of 2009

Decided On: 27.08.2019

Appellants: Jayesh H. Pandya and Ors.
Respondent: Subhtex India Ltd. and Ors.

Hon'ble Judges/Coram:
N.V. Ramana, Mohan M. Shantanagoudar and Ajay Rastogi


Ajay Rastogi, J.

1. The instant appeal is directed against the final judgment and Order dated 14th March, 2008 passed by the High Court of Judicature at Bombay whereby the High Court while dismissing the Arbitration Petition held that the Appellants had waived their right to the extension of time for completion of the arbitration proceedings and making the award, beyond the stipulated period of four months.

2. The seminal facts in brief relevant for the present purpose are that the Appellants are partners of a partnership firm by the name Hetali Construction Company. The first Respondent is a company incorporated under the Companies Act, 1956 and is a claimant in the arbitral proceedings which was initiated pursuant to the arbitration agreement dated 28th April, 2000. The first Respondent Subhtex India Limited instituted an application Under Section 11 of the Arbitration and Conciliation Act, 1996(hereinafter being referred to as the "Act 1996") for appointment of an Arbitrator in A.P. No. 150 of 2003 before the High Court of Judicature at Bombay despite resistance by the present Appellants that the agreement dated 28th April, 2000 was a collusive and a forged document. Initially, by an Order dated 14th November, 2003, late Shri Justice V.D. Tulzapurkar, former Judge of this Court was appointed as a sole Arbitrator without prejudice to the rights and contentions of the parties and it was clarified that the views expressed in the order dated 14th November, 2003 about the existence, validity and effect of the arbitration agreement were prima facie and it would be open to be examined by the learned Arbitrator Under Section 16 of the Act, 1996. The order passed by the Single Judge of the High Court dated 14th November, 2003 was a subject matter of challenge in a writ petition filed Under Article 226 of the Constitution of India which was dismissed vide judgment and order dated 20th January, 2004 with an observation that adequate remedies are available Under Section 16 of raising all contentious issues relating to the existence of the arbitration agreement and constitution of the Arbitral Tribunal, before the Tribunal.

3. The order of the Division Bench of the High Court dated 20th January, 2004 came to be challenged in a Special Leave Petition (Civil) No. 3919 of 2004 before this Court. This Court issued notice on 8th March, 2004 and stayed proceedings before the learned Arbitrator until further orders. Unfortunately, the sole Arbitrator appointed pursuant to Order dated 14th November, 2003 died in October, 2004. The said special leave petition was dismissed on 24th April, 2007 with the following observation as under:


In the facts and circumstances of the present case, we are not inclined to exercise our jurisdiction Under Article 136 of the Constitution of India. The special leave petition is dismissed.

We are informed that Mr. Justice V.D. Tulzapurkar, former Judge of this Court, who was appointed as the Arbitrator, has passed away.

Counsel for the parties are