2014 (2) TMI 1423

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....ndents have refused service. Since the respondents have chosen not to appear, I am proceeding to decide the appeal. This appeal is filed under Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act') against the impugned order of the court below dated 26.11.2011 which has accepted the objections of the respondents under Section 34 of the Act and set asi....

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.... 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 ju....

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....n to contend that, under Section 16, party cannot challenge the composition of the arbitral tribunal before the arbitral tribunal itself. Such a challenge must be taken, under Section 16(2), not later than the submission of the statement of defence. Section 16(2) makes it clear that such a challenge can be taken even though the party may have participated in the appointment of the arbitrator and/o....

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....sulting 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 ratio laid down....