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TMI Blog2017 (7) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... in detail and nor dealt with any of the grounds taken by the parties in their pleadings and in appeal in support of their respective contentions - The High Court erred in not recording any finding much less reasoned finding keeping in view the stand of the parties taken in the pleadings and the grounds of appeal. The High Court also erred in not pointing out as to why the order of the District Judge is legally sustainable calling no interference therein. If the High Court decided to embark upon the merits of the appeal then it should have recorded findings by dealing with all the issues arising in the case. It was, however, not done and hence it calls for interference by this Court. We cannot countenance the approach and the cryptic reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Agreement contained an arbitration Clause for resolving all kinds of disputes arising between the parties in relation to the agreement and hence the Appellant served the notices to the Respondent and called upon them to appoint the Arbitral Tribunal as provided in Clause 3.8 of the Agreement and refer the disputes regarding non-payment of their bills to the Tribunal for its adjudication. The Respondent, despite demand made by the Appellant, failed to constitute the Arbitral Tribunal and, therefore, the Appellant was constrained to file an application Under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act ) before the High Court praying therein for appointment of Arbitral Tribunal for dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the Appellant. None appeared for the Respondent though served. 11. Having heard learned Counsel for the Appellant and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits. 12. The impugned order reads as under: 1. The award has been passed on 3rd November, 2006 in favour of the Appellant for ₹ 25.64 lacs. The appeal Under Section 36 has been partly allowed on 16th November, 2007. Only the award for the amount of ₹ 11.90 lacs under bill No. 1 has been set aside and the Respondent herein has been directed to pay the Appellant ₹ 7.14 lacs instead constituting 75% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be. 15. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction. 16. We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when the appeal was called on for hearing, neither the counsel for the Appellant nor the counsel for the Respondent was present. 17. In such situation, provisions of Order 41 Rule 17 of the Code of Civil Procedure, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in this Sub-rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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