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TMI Blog2014 (2) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by the court below in the case of Narayan Prasad Lohia inasmuch as whether the Award is ex-parte or contested. Section 16 of the Act comes into play as also the ratio laid down in para. 16 of the judgment i.e. it is not open to a person who does not contest the arbitration proceedings by remaining ex-parte to raise objections under Section 34 of the Act with respect to jurisdiction because by failing to raise objection as to jurisdiction before the arbitrator objection as to jurisdiction is deemed to be waived. Trial court is completely unjustified in distinguishing the direct ratio of the judgment of the Supreme Court more so when the basis of distinguishing the ratio is on a wholly unacceptable basis because a person cannot take a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aper and Paper Boards which were supplied by the appellant/claimant to the respondents. 2. I am indeed surprised at the way in which the trial court has dealt with this matter. This is all the more so because before the trial court the binding judgment of the Supreme Court in the case of Narayan Prasad Lohia Vs. Nikunj Kumar Lohia and Ors. 2002 II AD (S.C.) 299 : (2002) 3 SCC 572 was cited and which holds that objection as to jurisdiction of the arbitrator has to be necessarily taken before the arbitrator by filing of an application under Section 16 of the Act and which if not done, objection as to jurisdiction is deemed to be waived. Para. 16 of this judgment of the Supreme Court reads as under:- 16. It has been held by a Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver under Section 4. Thus, we are unable to accept the submission that Section 10 is a Non-derivable provision. In our view Section 10 has to be read along with Section 16 and is, therefore a derogable provision. 3. The court below has distinguished this judgment on the ground that in the present case the respondents did not appear before the arbitrator resulting in an ex-parte Award and therefore the Supreme Court judgment in the case of Narayan Prasad Lohia (supra) is not applicable. There cannot be a more perverse reading of the ratio of the Supreme Court judgment by the court below in the case of Narayan Prasad Lohia (supra) inasmuch as whether the Award is ex-parte or contested. Section 16 of the Act comes into play as also the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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