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TMI Blog2017 (2) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Vibhu Bakhru, J. Mr Balbir Singh, with Mr Sandeep Bajaj, Mr Soaib Qureshi, Mr Abhishek Baghel, Ms Kritika Seth, alongwith Mr Nitin Daga, AR For The Petitioner. Mr Gopal Jain, Mr Ajay Bhargava, Mr Rajiv Bhatnagar, Mr Anshuman Sharma, Mr Shreshth Sharma, Mr Aseem Chaturvedi and Mr Vipul Joshi For The Respondent. ORDER Vibhu Bakhru, IA No.1332/2017 Allowed, subject to all just exceptions. The application is disposed of. O.M.P. (COMM) 41/2017 IA No. 1333/2017 1. The petitioners have filed the present petition under section 34 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act') assailing the arbitral award (hereafter 'the impugned award' ) dated 16.08.2016 entered by the sole arbitrator, Justice Vikramajit Sen, a former judge of the Supreme Court of India. 2. Admittedly, the petitioners had received the impugned award on 30.08.2016 and filed the present petition on 30.11.2016, that is, on the last date of limitation. 3. It is also not disputed that the petition as initially filed, was not accompanied by a certified copy of the arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation proceedings. Thus, the petitioners had ample time to collate the relevant documents and had filed the petition only on the last date of limitation. Therefore, the excuse that petitioners did not have the necessary documents can hardly be accepted. The contention that there are various litigations pending against the petitioners also cannot be entertained as no details have been provided as to how the pending litigations prevented or precluded the petitioners from filing the present petition within the prescribed time. The application for condonation of delay in re-filing the petition - IA 1333/2017 - is accordingly liable to be dismissed. 6. Notwithstanding the above, for the sake of completeness, I have heard Mr Balbir Singh, the learned senior counsel appearing for the petitioners on merits as well. 7. The impugned award was made in the context of the disputes between the petitioners and Jindal Steel and Power Limited, the respondent, (hereafter JSPL ). The sole arbitrator was appointed by an order dated 08.01.2016 passed by the Supreme Court in Special Leave to Appeal (C) No. 30818/2015. The subject disputes referred to the sole arbitrator arose betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97.80) for 61485.920 MT of the product, which GNCL had failed to supply. JSPL also claimed costs and pendente lite interest. 9. The arbitrator entered upon the reference and it is not disputed that the arbitrator held a preliminary hearing on 14.01.2016. On the said date, the arbitrator inter alia fixed the schedule for completion of pleadings in consultation with the counsel for the parties. JSPL filed its statement of claims within the time prescribed but the petitioners failed to file their statement of defence and counter claims as per the agreed schedule - that is, on or before 25.02.2016. 10. After the time period for filing the statement of defence was over, the petitioners filed an application for enlargement of time for filing the statement of defence. It is relevant to mention that in their application, the petitioners claimed that the proceedings under Section 391 and 394 of the Companies Act, 1956 had been initiated in the High Court of Calcutta for sanction of a scheme of compromise and arrangement between GNCL and its creditors. The petitioners pleaded that it was reluctant to disclose its defence as it may lead to an adverse impact on the credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly known as Gujarat NRE Wonga Pty Ltd.) - for purchase of the product. He submitted that JSPL was always aware that GNCL was to source the product from the said Australian Companies. He stated that JSPL had acquired control over the Australian Companies and had prevented the supply of the product to GNCL and thus, disabled GNCL from performing the amended CPA. He submitted that the arbitrator had grossly erred in ignoring the aforesaid allegations/averments. 15. He relied on the decision of the Supreme Court in State of Uttar Pradesh and Others v. Combined Chemicals Company Private Limited: (2011) 2 SCC 151 and drew the attention of the court to paragraph 30 of the said decision. On the strength of the said decision, he contended that even where an arbitrator proceeds ex-parte, the arbitral award which is unsustainable would be set aside. He further contended that the arbitrator had awarded damages merely on the statement of JSPL without any other material. 16. In my view, the contentions advanced by Mr Singh are inconsiderable and without merit. There is no dispute that GNCL had accepted the advances as claimed by JSPL. It is also not disputed that GNCL had fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to either disclose its defence or lead any evidence. GNCL also did not challenge the evidence led by JSPL. In the circumstances, GNCL cannot now be heard to complain that its averments ought to have been considered by the arbitrator to reject the claims of JSPL. On the contrary, it is difficult to understand as to how the award could be sustained if the arbitrator had rejected the claims of JSPL on the basis of unsubstantiated averments made by the petitioners in another proceeding, without the petitioners establishing the same. 21. The decision in the case of State of Uttar Pradesh and Others v. Combined Chemicals Company Private Limited (supra) also does not carry the case of the petitioners any further. In that case, the court had found that the arbitrator had passed an award without assigning any reason and without even recording a finding that the respondent therein had suffered a loss. The court held that the award impugned (in that case) was made in a casual manner. The relevant portion of the award extracted in the said decision clearly indicates that there were no discussions or reasons as to why the arbitrator had awarded in favour of the respondent therein. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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