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TMI Blog2022 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11. This Court held that while dealing with petition under Section 11, the Court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable. In such case, the issue of non-arbitrability is left open to be decided by the Arbitral Tribunal. On perusal of the impugned order, we find that the issues of non-arbitrability and the claim being time barred have not been concluded by the learned Single Judge of the Bombay High Court. In fact, in clause (vii) of the operative part of the impugned Order, the learned Single Judge has observed that the contentions of the parties have been kept open. The petitions filed by the appellant under Section 34 of the Arbitration Act, challenging the Order dated 25th May 2021 are pending before the High Court in which the appellant can raise all permissible contentions. The appeal is dismissed, while leaving open the contentions raised by the appellant in pending petitions under Section 34 of the Arbitration Act before the High Court of Bombay. - CIVIL APPEAL NO. 874 OF 2022 (Arising out of SLP (Civil) No. 7635 of 2021) CIVIL APPEAL NO. 875 OF 2022 (Arising out of SLP (Civil) No. 7655 of 2021) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Arbitrator, the appellant was represented by an advocate. It is pointed out that the respondent no.1 filed an application under Section 17 of the Arbitration Act before the learned Arbitrator claiming certain interim directions. The respondent no.3 filed an application under Section 16 of the Arbitration Act contending that there was no arbitration agreement in existence and that the claim made by the respondent no.1 before the Arbitrator was barred by limitation. By the order dated 25th May 2021, the learned Arbitrator rejected the objection raised under Section 16. The respondent no.1 has pointed out in the counter affidavit that before the learned Arbitrator, the appellant, the respondent no.2 and respondent nos.4 and 5 were represented by a common advocate who specifically supported the submissions of the learned counsel appearing for the respondent no.3 in support of the application under Section 16. It is also pointed out that the aforesaid material facts have been suppressed in the present appeals filed on 9th June 2021. It is also pointed out that by the order dated 24th June 2021, the learned Arbitrator allowed the application under Section 17 filed by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion filed under Section 11 was served upon the appellant. He submitted that the appellant was represented before the Arbitral Tribunal by his advocate, Mr. Shreyans Baid, who supported the objections raised by the respondent no.3 under Section 16 of the Arbitration Act regarding the absence of arbitration agreement as well as the time barred claim. He submitted that the said objection was overruled by the learned Arbitrator by his order dated 25th May 2021. He pointed out that this material fact has been suppressed by the appellant while filing these appeals. He pointed out that the appellant has filed petitions under Section 34 of the Arbitration Act before the Bombay High Court on 2nd December 2021 for challenging the order dated 25th May 2021. He submitted that the appellant can always agitate the issues raised by him in these appeals in the arbitration petition under Section 34. He submitted that documents have been placed on record which show that Mr. Baid, the learned advocate was appearing on behalf of the appellant before the learned Arbitrator and that the said advocate represented the appellant before the Arbitrator from 8th May 2021. The learned counsel appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting the Arbitrator. In fact, Mr. Baid, the learned counsel who appeared for the appellant before the learned Arbitrator, by email dated 29th May 2021 addressed to the learned Arbitrator, sought his permission to withdraw his appearance. In the said email, the advocate stated that he was appointed on the instructions of the present appellant. Moreover, the order dated 25th May 2021 passed by the learned Arbitrator by which objections under Section 16 were overruled shows that the same advocate appeared for the appellant and supported the objections raised by the respondent no.3. As the objection was rejected by the learned Arbitrator, in view of subsection (6) of Section 16, on 21st December 2021, the appellant has filed a petition under Section 34 of the Arbitration Act, which is pending before the Bombay High Court for challenging the said Order. 10. The learned counsel appearing for the respondent no.1 has relied upon what has been held in paragraphs 95 and 98 of the decision of this Court in the case of Vidya (supra). The conclusions of this Court have been summarised in paragraph 154 of the said decision, which reads thus: 154. Discussion under the heading Who Decides a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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