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Judgment
Dr. Pushpendra Singh Bhati, J
The instant application under Section 151 of the Code of Civil Procedure read with Arbitration and Conciliation Act, 1996 has been preferred by the applicant (respondent in Arbitration Application No.31/2017), for recalling the order dated 03.11.2023 passed by this Court, whereby the application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘Act of 1996’) preferred by the non-applicant/petitioner was allowed and an arbitrator was appointed.
Mr.Manish Shishodiya, learned Senior Counsel assisted by Mr.Jaideep Singh Saluja appearing on behalf of the applicant-respondent-Vipin Kumawat, submitted that the order dated 03.11.2023 was passed by this Court, in absence of the learned counsel appearing on behalf of applicant-respondent. It was further submitted that the respondent had already filed a detailed reply to the main arbitration application, raising various legal objections therein.
2.1. It was further submitted that the applicant-respondent had filed a partition suit in the year 2016 before the Additional District Judge, Nathdwara which is pending, and in the said suit, the injunction was granted on 20.12.2016 by the said Court. It was also submitted that the application under Sections 5 & 8 of the Act of 1996 is already pending before the Civil Court.
2.2. It was also submitted that the non-applicant/petitioner filed an application under Section 9 of the Act of 1996 wherein an ex-parte order was passed against the applicant-respondent, and the respondent filed an application under Order 9 Rule 13 CPC, which is pending. It was further submitted that the non-applicant/petitioner himself filed a suit of partition in the year 2018 before learned District Court, Udaipur.
2.3. It was further submitted that there are other contesting parties involved therein and they are also parties to the suit, but the non-applicant/petitioner arrayed them as parties in main application under Section 11 of the Act of 1996, therefore, the instant application deserves to be allowed, while recalling the order dated 03.11.2023 passed by this Court in the above-numbered arbitration application.
2.4. In support of such submissions, learned Senior Counsel relied upon the following judgments:-
(a) Vidya Drolia and Others Vs. Durga Trading Corporation (2021) 2 SCC 1;
(b) Gujarat Composite Limited Vs. A Infrastructure Limited (2023) 7 SCC 193;
(c) Booz Allen And Hamilton Inc. Vs. SBI Home Finance Limited & Ors (2011) 5 SCC 532;
On the other hand, learned counsel appearing on behalf of the non-applicant/petitioner, while opposing the aforesaid submissions made on behalf of the applicant-respondent, submitted that the suit had been instituted after filing of the application under Section 11 of the Act of 1996 and all the parties in the suit are not the parties to the arbitration agreement. It was further submitted that when the matter was called for hearing before this Court on 03.11.2023, the learned counsel for the applicant-respondent did not put in his appearance, and therefore, at this stage, no case for recalling of the order dated 03.11.2023 is made out.
3.1. It was further submitted that as per the arbitration clause contained in the agreement, the arbitrator was appointed by this Court on 03.11.2023, and the same was done while looking into the merits of the case. It was also submitted that in pursuance of the order dated 03.11.2023, the arbitration proceedings already commenced before the learned Arbitrator, and therefore, the present application is not maintainable, at this belated stage.
Heard learned counsel of the parties as well as perused the record of the case alongwith the judgments cited at the Bar.
This Court observes that at the time when the application under Section 11 of the Act of 1996 was decided by this Court on 03.11.2023, no one has put in appearance on behalf of the applicant-respondent, and vide the said order, the arbitrator was appointed. Thereafter, the applicant-respondent-Vipin Kumawat filed present application for recalling of the said order.
This Court further observes that the applicant/respondent-Vipin Kumawat and other persons filed a suit for partition before the Court of learned Additional District Judge in the year 2016 against the non-applicant/petitioner and other persons, and while the same was pending, the non-applicant/petitioner also filed an application under Sections 5 & 8 of the Act of 1996 against the applicant/respondent.
This Court also observes that the non-applicant/petitioner filed an application under Section 9 of the Act of 1996 against the applicant/respondent before the learned District Court, Rajsamand, wherein the learned District Court passed an ex-parte interim order on 30.05.2017. The applicant/respondent filed an application under Order 9 Rule 13 CPC against the said order, which is pending. This Court further observes that the non-applicant/petitioner filed a suit for partition before the District Court, Udaipur against the applicant-respondent and other persons (Annexure-R/7) in the year 2018 and the same was pending.
This Court further observes that when the order dated 03.11.2023 was passed, no one has appeared on behalf of the non-applicant/respondent, and looking into above said pending suits and applications, as well as factual matrix of the case, the above-numbered arbitration application is required to be heard afresh, for proper and effective adjudication of the case and therefore, the present application for recalling is allowed and order dated 03.11.2023 passed by this Court in S.B. Arbitration Application No.31/2017 is recalled, and the proceedings undertaken by the learned Arbitration, in pursuance of the said order dated 03.11.2023 are dropped. The original application (Arbitration Application 31/2017) under Section 11 of the Act of 1996 is restored to its original number and ordered to be listed accordingly.