UNIQUE JEWELLERY Vs. MMTC LIMITED

JUDGEMENT

(1.) This is an application for restoration of the petition under Section 34 of the Arbitration and Conciliation Act, 1996 which was dismissed for non- prosecution on 25.01.2006. This was not for the first time when the said petition had been dismissed. On an earlier occasion also, the petition had been dismissed in default on 19.09.2003. An application being IA No.10441/2003 was filed for restoration of the said petition consequent upon the dismissal in default on 19.09.2003. The said application was disposed of by an order dated 31.08.2005, whereby this court, having regard to the circumstances disclosed in the application and submissions made on behalf of the respondent, allowed the application. The order dated 19.09.2003 was recalled and the petition was restored to its original number subject to costs of Rs.5,000/-. These costs were not paid. On the next date, i.e., on 25.01.2006, nobody entered appearance on behalf of the petitioner. As such, the petition was dismissed for non- prosecution. The present application has been filed for restoration of the petition which was dismissed for non-prosecution on 25.01.2006. The restoration itself was conditional upon the petitioner paying costs of Rs.5,000/- to the contesting defendant No.1. Those costs were not paid. Today, the learned counsel appearing for the petitioner submits that on 25.01.2006, he had come with the said amount of Rs.5,000/- and that he has the amount with him. However, he could not pay the said amount on 25.01.2006 because of an error of the judgment on his part of the manner in which the cases were being disposed of by the different Benches of this court. It is for this reason that he could not be present when the matter was called out and, therefore, the petition was dismissed for non-prosecution. According to him, the non-appearance was unintentional and, therefore, this application should be allowed and the petition be restored. The costs of Rs.5,000/- awarded earlier are handed over to the learned counsel for the respondent No.1 and the same has been accepted by him.

(2.) For the reasons stated in the application and upon considering the submissions made on behalf of the parties, this application stands allowed and the petition is restored to its original number. The same is being taken up for hearing today itself.

(3.) The primary ground taken under this petition under Section 34 of the Arbitration and Conciliation Act, 1996 is that the petitioner No.1 was unable to present its case and defend itself properly before the Arbitral Tribunal. It may be noted that the Arbitral Tribunal comprised of Justice K.S. Sidhu (Retd.)[Presiding Arbitrator], Late Mr Justice M.C. Kochhar (Arbitrator) and Mr Chand K. Tikku(Arbitrator). The first two arbitrators are former Judges of the High Court of Rajasthan and in the proceedings before them, it had been clearly understood that evidence would be by way of affidavits and there would be no scope for oral examination of the witnesses or cross-examination. This procedure had been settled at the threshold of the arbitral proceedings. Therefore, the grounds taken in the petition with regard to the petitioner No.1 not being permitted to cross-examine the witnesses is untenable.