M/s. Alok Coal Agencies Limited, a Company incorporated under v. State of Jharkhand through Executive Engineer, Minor Distribution

Judgment

1. 2. Heard the learned counsel for the parties. This appeal has been filed challenging the order passed on

22.07.2014 in Misc. Case No. 15/2008 by the learned Civil Judge, Senior Division-VI, Jamshedpur whereby the arbitral award rendered in favour of the appellant by the Sole Arbitrator, Shri. R. D. Ray, Ex- Chairman-cum-Managing Director, Western Coalfields Limited, dated

15.05.2008 had been set-aside in exercise of jurisdiction under Section 34 of The Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act, 1996”). Arguments on behalf of the appellant 3. Learned counsel for the appellant submitted that the primary ground, which was taken by the respondent before the learned court below to challenge the award, was that the appointment of the arbitrator was illegal and consequently, the award delivered by him was also illegal and unenforceable. The learned counsel submitted that there is no dispute that there was arbitration clause in the contract 2

entered into between the parties and the concerned clause was clause 51 of the General Conditions of Contract. The learned counsel submitted that it is further not in dispute that no objection in connection with the jurisdiction of the arbitrator or with regard to his appointment was raised by the respondent before the learned arbitrator. It is further not in dispute that the respondent did not participate in the arbitral proceedings by filing any claim or counter claim before the learned arbitrator, but only issued certain letter in the name of the claimant questioning the jurisdiction of the learned Arbitrator, a copy of which was also marked to the learned arbitrator. The learned counsel further submitted that such letter was also taken note of by the learned arbitrator and the learned Arbitrator had issued a letter to the respondent clearly mentioning that they are required to participate in the proceedings to question the jurisdiction of the learned Arbitrator or they may have any order from higher court. 4. The learned counsel further submitted that the respondent had moved this Court in writ jurisdiction which was numbered as W.P. (C) No. 6418/2005 seeking a direction on the learned arbitrator not to proceed with the arbitral proceedings and the engagement of the learned arbitrator was challenged indirectly, but this Court not only refused to entertain the prayer of the respondent, but also recorded that the writ petition was not maintainable and mentioned about the competence of the arbitral tribunal to rule on its own jurisdiction which can be raised by the respondent herein under Section 16 of the Act, 1996 subject to other provisions of the Act. The learned counsel submitted that the order in the writ petition was passed on 13.07.2006. 5. The learned counsel further submitted that in spite of the order dated 13.07.2006, the respondent herein did not participate in the arbitral proceedings. The arbitral award clearly reflects in Paragraph-6 at internal page 16 of the award that the case was heard in 24 sittings and the last hearing was held on 15.11.2007. A copy of the proceedings of each and every sitting was sent to the respondent i.e. Executive Engineer by registered post and also to the Chief Engineer 3 and Superintending Engineer and it was made amply clear to them that the arbitration proceedings would continue, until a stay order is brought from an appropriate court of law, but in none of the sittings, the respondent or its representatives appeared to participate in the proceedings, nor did they submit their statement of defence. Under such circumstances, the case proceeded ex-parte as per the provisions of Section 25 of the Act, 1996. The learned counsel further referred to Paragraph 7 at internal page 17 and submitted that in spite of the fact that the respondent did not participate in the proceedings and did not raise any objection with regard to jurisdiction in terms of Section 16 of the Act, 1996, the learned Arbitrator had interalia framed the issue i.e. appointment of arbitrator and his jurisdiction and the said issue was decided as Issue No.(i) running from internal page 17 to 21 of the award. The learned counsel submitted that whatever documents were available with the learned Arbitrator with regard to his jurisdiction were considered and it was recorded that he had the required jurisdiction and competence to arbitrate. Such finding was recorded in spite of the fact that no objection under Section 16 was raised by the respondent before the learned arbitrator. The learned arbitrator also took note of the order passed by the High Court in the writ jurisdiction. 6. The learned counsel has relied upon the judgment dated

12.05.2023 passed by the Hon’ble Division Bench of this Court in Commercial Appeal No. 21 of 2019 (Vinay Choudhary –vs- Sumit Sanwaria) and referred to Para- 10 to 23 and 26 of the judgment to submit that a person who does not participate in the proceedings objecting to the jurisdiction of the arbitrator is deemed to have waived his right to raise such objection. He submitted that the entire scheme of the act has been considered by the Hon’ble Division Bench and in the said case also, the respondent had not participated in the arbitral proceedings. 7. The learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of Sohan Lal Gupta (Dead) 4 through Lrs. & Others –vs- Asha Devi Gupta (Smt) & Others reported in (2003) 7 SCC 492 Para- 22 to 24 to submit that the Hon’ble Supreme Court has considered as to what would constitute a reasonable opportunity to participate in the proceedings. The learned counsel submitted that all reasonable opportunities were granted to the respondent to participate the arbitral proceedings, but respondent took a conscious decision not to participate. The appointment of the arbitrator was challenged by the respondent in writ jurisdiction, wherein it was observed that they could raise an objection under Section 16 of the Act of 1996 before the learned arbitrator, in spite of that, the respondent did not participate in the Arbitral proceedings. The learned counsel submitted that otherwise also, the appointment of the learned arbitrator was essentially a matter of interpretation of Clause 51 of the Contract, which was within the jurisdiction of the learned arbitrator and the respondent having not participated in the proceedings cannot be permitted to raise such objection on jurisdiction at a later stage under Section 34 of the Act,

1996. The learned counsel submitted that the learned arbitrator has appreciated the materials, interpreted the contract, interpreted the communications and has recorded a finding and there was no scope for any further deliberation on the communications and the contract for the first time under Section 34 of the Act, 1996 at the instance of the respondent who consciously choose not to participate in the proceedings and invite adjudication from the arbitrator. 8. The learned counsel also submitted that the judgment passed by the Hon’ble Supreme Court as has been relied upon in the impugned order which is reported in (1999) 5 SCC 651 (Olympus Structures Pvt. Ltd. vs. Meena Vijay Khetan) has been misread by the learned court below. He referred to Para- 21 and 22 of the said judgment and submitted that the question with regard to Section 16 vis-à-vis Section 34 of the Act, 1996 was still open to be decided in an appropriate case. 9. The learned counsel for the appellant also relied upon the judgment passed by the Hon’ble Supreme Court reported in (2020) 18 5 SCC 277 (Quippo Construction Equipment Ltd. vs. Janardan Nirman private Ltd.) Paragraph- 18, 23 to 25. Arguments on behalf of the respondent 10. Learned counsel appearing on behalf of the respondent, on the other hand, submitted that the learned arbitrator was not appointed in terms of Clause 51 of the Contract as he was not qualified in terms of the said provision and therefore, the impugned order setting-aside the arbitral award does not call for any interference. The learned counsel submitted that even if the respondent did not participate in the proceedings before the learned arbitrator, but still the respondent can argue that the appointment of the learned arbitrator was illegal and void-ab-initio and therefore, the appointment of the learned arbitrator was challenged in the petition filed under Section 34 of the Act, 1996. 11. The learned counsel also submitted that non-participation of the respondent in the arbitral proceedings cannot act as an estoppel against the respondent to raise his point with regard to the jurisdiction of the arbitrator under Section 34 of the Act, 1996. He submitted that merely because no objection in terms of Section 16 of the Act, 1996 was raised before the learned arbitrator, the same is not fatal to the argument of the State before the learned court below that the arbitrator has no jurisdiction. He referred to Section 34(2)(v) of the Act, 1996 to submit that the case of the respondent fell under the said sub-clause and therefore, the impugned order has been rightly passed. Findings of this Court 12. After hearing learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the parties are governed by Clause 51 of the General Conditions of Contract. Clause 51 of the Contract is quoted as under: - “51. ARBITRATION All the disputes or difference in respect of which the decision has not been final and conclusive shall be referred for arbitration to a sole arbitrator appointed as follows: - Within thirty days of receipt of notice from the Contractor of his intention to arbitration of Chief Engineer, Subernarekha Multipurpose Project, Jamshedpur shall send to the Contractor a list of the dispute 6 three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under this contract. The Contractor shall within fifteen days of receipt of this list select & communicate the Chief Engineer the name of one officer from the list who shall then be appointed as the sole arbitrator. If Contractor fails to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer from the list and appoint him as the sole arbitrator. If the Chief Engineer fails to send such a list within thirty days, as stipulated, the Contractor shall send a similar list to the Chief Engineer within fifteen days. The Chief Engineer shall then select one officer from the list and appoint him as the sole arbitrator within fifteen days. If the Chief Engineer fail to do so, the Contractor shall communicate to the Chief Engineer the name of the officer from the list, who shall then be the sole arbitrator. The arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory modification thereof. The decision of the sole arbitrator shall be final and binding on the parties thereto. The arbitrator shall determine the amount of cost of arbitration to be awarded to either parties, performance under the contract shall continue during the arbitration proceedings and payments due to the Contractor shall not be with-held unless they are subject matter of arbitration proceedings. All awards shall be in writing and in case of awards amounting to Rs. 1.00 lack & above, such awards shall state the reasons for the amount awarded. Neither party is entitled to bring a claim to arbitration if the arbitrator has not been appointed before the expiration of thirty days after defects liability period.”

13. It further appears that the dispute arose between the parties and certain letters were exchanged between them in connection with appointment of arbitrator and ultimately, the claimant appointed Sri. R.D. Ray, Former Chairman-cum-Managing Director, WCCL (a government of India undertaking), Nagpur as the arbitrator in the proceedings. The arbitrator issued notice to the parties and the respondent herein issued a letter to the appellant with a copy to the learned arbitrator that the appointment of the arbitrator was improper and even illegal and void-ab-initio. 14. It further appears from the records of the case and it is not in dispute that the learned arbitrator had issued a letter to the respondent that the point of jurisdiction is to be decided by the learned arbitrator and the respondent was called upon to participate in the proceedings or else he could bring an order from the competent court. Consequently, the respondent filed a writ petition before this Court 7 bring W.P. (C) No. 6418/2005, which was disposed of vide order dated 13.07.2006 and it was clearly observed therein that the competence of arbitral tribunal to rule on its jurisdiction can be raised by the petitioner therein under Section 16 of the Arbitration & Conciliation Act, 1996, subject to other provisions of the Act. 15. It further appears from the award that proceedings of all the dates were being forwarded to the parties and in spite of order dated

13.07.2006 passed in W.P. (C) No. 6418/2005, the respondent herein did not choose to appear before the learned arbitrator and file any objection in connection with jurisdiction of the learned arbitrator in terms of Section 16 of the Act, 1996 or question the jurisdiction at any stage by filing any petition to that effect. The respondent did not even contest the claim of the petitioner. However, the learned Arbitrator, in spite of the fact that the respondent did not appear in the proceedings, on the strength of a letter which was issued by the respondent to the claimant and a copy was marked to the learned Arbitrator, framed altogether 5 issues including the Issue No. 1 i.e. appointment of arbitrator and his jurisdiction. The entire dispute in the present case revolves around the issue No. 1 framed by the learned arbitrator. The learned arbitrator considered the exchange of letters which were available on record of the learned arbitrator and recorded his findings in Paragraph- 3 and 4 of the arbitral award, which are quoted as under: - “3. The claimant submitted that they raised certain claims to the respondent after alleged termination of the contract. The claims were rejected by the respondent. Thus the dispute came in existence. In accordance with clause 51 of the General Conditions of the contract they requested the respondent through their letter dated 07.02.2003 (Ann. 30) for referring the dispute to arbitration. They further requested the Chief Engineer to send them within 30 days the names of three officers from whom they (claimant) could select one to be the Arbitrator. When this request was not complied with by the Chief Engineer a similar list of three highly experienced and qualified persons was sent by the claimant to the Chief Engineer through letter dated 01/02.04.2003 (Ann. 32) with a request to select one as the Sole Arbitrator. When no response was received from the Chief Engineer, the claimant appointed Sri R.D. Roy, as Sole Arbitrator out of the aforesaid list. Since the appointment of the arbitrator has been done as per provisions of clause 51 of GCC, the appointment is proper and legal. The claimant has further submitted that if the respondent had any objection to the appointment or jurisdiction of the arbitrator, they could have raised this issue before the arbitrator and the 8 arbitrator could have ruled on his jurisdiction under sec. 16 of the Arbitration and Conciliation Act, 1996.

4. I find ample force in the submission of the claimant. The appointment of the arbitrator has been done in accordance with the provisions of clause 51 of the General Conditions of the Contract and as such this appointment is proper, legal and in order. It may not be out of place to mention that on the writ filed by the respondent the Hon’ble Jharkhand High Court also has given its verdict on 13.07.2003 on similar lines which is quoted below. “This writ petition has been preferred by the petitioner for a direction on the 2nd respondent, Mr. R.D. Roy, Sole Arbitrator, not to proceed with the Arbitration proceeding. In this case, the engagement of Arbitrator, in fact, has been challenged indirectly. Counsel appearing for the 1st respondent rightly pointed out that the writ petition under Article 226 of the Constitution of India is not maintainable as against a private individual. The competence of arbitral tribunal to rule on its jurisdiction can be raised by petitioner under section 16 of the Arbitration & Conciliation Act, 1996, subject to other provisions of the said Act. In the circumstances, this court is not inclined to give any relief under Article 226 of the Constitution of India, but allow the petitioner to move appropriate forum, if otherwise maintainable. This application stands disposed of.”

16. The learned arbitrator after appreciating the materials on record available before him recorded that the appointment of arbitrator was done as per the provisions of Clause 51 of the General Conditions of Contract and that the appointment was proper and legal. The learned arbitrator further observed that the competence of arbitral tribunal to rule on its own jurisdiction can be raised under Section 16 of the Act, 1996 subject to other provisions, but no such objection was ever raised. 17. This Court also finds from the arbitral award that the parties were given full opportunity to participate and when the respondent did not choose to participate, the learned arbitrator proceeded ex-parte in terms of Section 25 of the Act, 1996 and passed the award. The respondent had challenged the arbitral award on the ground that the appointment of arbitrator was itself not in accordance with Clause 51 of the contract. 18. The learned court below heard the parties and passed the impugned order. The learned court below, interalia, was of the view that obviously, in an ex-parte order, the party who could not participate in the proceeding loses the opportunity to put forth his 9 point with respect to the matters in controversy and therefore, it naturally defeats fundamental principle of natural justice i.e. right to be heard and so whenever a party is left to be heard must be given opportunity to argue his case for the proper decision over any controversy. The learned court below also dealt with point of estoppel against any of the parties and was of the view that any of the parties who failed to raise objection regarding jurisdiction of the arbitrator in the petition at the stage of Section 34 of the Arbitration and Conciliation Act, 1996 is not precluded from raising this question at the stage of Section 34 of the Act, and even though these issues which have not been raised as per Section 2, 3 and 16 of the Act, can be raised under Section 34 of the Act, 1996. For this, the learned court below has relied upon the judgment passed by the Hon’ble Supreme Court reported in (1999) 5 SCC 651 (supra). However, from perusal of the aforesaid judgment particularly, Paragraph 21 and 22, it appears that no such ratio was laid by the Hon’ble Supreme Court in the said judgment, rather the issue was kept open. Paragraph- 21 and 22 of the said judgment is quoted as under: - “21. It may be argued on one side that the time-limits set in arbitration clauses (2) and (3) of Section 16 are mandatory and do not permit the said question to be raised at a later point of time even under Section 34. An opposite view could be that these being jurisdictional issues, the fact that they were not raised earlier could not preclude the questions being raised under Section 34 inasmuch as consent, express or implied could not confer jurisdiction. 22. We do not think it necessary to decide this question in view of the fact that though Section 16 was referred to during the course of the hearing, the learned Senior Counsel for the respondents had argued on merits that the disputes/differences the arbitrator had concerning the Interior Design Agreements also and that even if the appellant could be permitted to raise these issues at the stage of Section 34, there was no substance in the said contentions.”(emphasis supplied ) jurisdiction to decide

19. The impugned order, by which the arbitral award has been set- aside, has been passed by misreading of the judgment passed by the Hon’ble Supreme Court reported in (1999) 5 SCC 651 (supra) and the learned court below also failed to consider that the point as to whether the learned arbitrator was appointed in terms of Section 51 of the Contract was itself a mixed question of fact and law and the same was 10 decided by considering the various documents which were placed and available before the learned Arbitrator.

20. In the judgement passed by the Hon’ble Supreme Court reported in (2020) 18 SCC 277 (supra), the venue of arbitration in the agreement was mentioned to be in Kolkata but the proceedings had taken place in Delhi but the party neither participated in the arbitral proceedings nor raised any objection to the jurisdiction, it was held that the party was precluded to raise any submission or objection as to venue of Arbitration by referring to section 4, 16 and 20 of the Act of

1996. In this judgement, the Hon’ble Supreme Court also considered derogable and non-derogable provision of the Act of 1996 to deal with the point of waiver. 21. In the present case, this Court finds that the respondent did not participate in the arbitral proceedings at all in-spite of repeated opportunities granted by the learned Arbitrator and in-spite of the aforesaid observations made in the writ order to raise objection, if any, in terms of section 16 of the aforesaid Act of 1996. The learned Arbitrator has considered the point of his jurisdiction on the basis of a copy of the letter written by the respondent to the claimant and appreciated the materials placed before him including the various communications between the parties to hold that he had the required jurisdiction to arbitrate. Thus, in the present case, the point of jurisdiction is a mixed question of fact and law. This is not a case where the arbitral award suffered from inherent or patent lack of jurisdiction to render the award null and void or nullity in the eyes of law and therefore it can be held that even if the respondent did not participate in the arbitral proceedings, the award can be declared a nullity.

22. So far as the fundamental principles of natural justice is concerned i.e. right to be heard, this issue has also fallen for consideration in the judgment passed by the Hon’ble Supreme Court reported in (2003) 7 SCC 492 Paragraph- 22, 23 and 25 and it would 11 be relevant to quote paragraph 23 of the said judgment, which deals as to what constitutes reasonable opportunity. Paragraph 23 of the said judgment is quoted as under: - “23. For constituting a reasonable opportunity, the following conditions are required to be observed:

1. Each party must have notice that the hearing is to take place. 2. Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses. 3. Each party must have the opportunity to be present throughout the hearing.

4. Each party must have a reasonable opportunity to present evidence and argument in support of his own case.

5. Each party must have a reasonable opportunity to test his opponent's case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument.

6. The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument.

23. This Court finds that the award itself indicates that ample opportunity was given to the respondent to appear and participate in the proceedings before the learned arbitrator. Even the observation of this Court in the writ jurisdiction also indicated that the respondent could raise their objection in terms of Section 16 of the Act of 1996, but it appears that it was a conscious decision on the part of the respondent not to participate in the arbitral proceedings in spite of having been given repeated opportunities to participate. The arbitral award indicates that all the orders passed by the learned arbitrator were being communicated to the parties. In fact, this Court finds that in-spite of the respondent having not participated in the arbitral proceedings, the learned arbitrator was judicious enough to frame an issue on the point of his jurisdiction and after going through the materials available with the learned arbitrator, a finding has been recorded that the arbitrator had the jurisdiction and his appointment was in accordance with Clause 51 of the Contract. 24. This Court finds that the judgment passed by the Hon’ble Division Bench of this Court in Commercial Appeal No. 21/2019 12 (supra) squarely covers the issue involved in the present case. The said case was dealing with the situation where the respondent of the case did not participate in the arbitral proceedings and the plea of waiver has been duly considered with respect to the various provisions of the Arbitration and Conciliation Act, 1996. The Hon’ble Division Bench has also observed that the Arbitration Act is a self-contained code. Paragraph- 10, 13 to 19 of the aforesaid judgment is quoted as under: - “10.Mr. P. K. Bhattacharya, the learned counsel for the claimant has raised the following three-fold submissions: (i) the respondent who did not participate in the arbitral proceedings must be deemed to have waived his right to raise any objection to the appointment of the Sole Arbitrator (ii) section 4 read with section 25 (b) of the Arbitration and Conciliation Act, 1996 puts an embargo to challenge the Award on the ground of unilateral appointment of the Arbitrator, and (iii) the Commercial Court has passed a cryptic order without considering the interplay of sections 4, 5, 12, 14, 16 and 25 vis-a-vis section 11 of the Arbitration and Conciliation Act, 1996.

13. The Arbitration Act has been held to be a self-contained Code [“Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.” (2011) 8 SCC 333] and in “Pasl Wind Solutions (P) Ltd. v. GE Power Conversion (India) (P) Ltd.” (2021) 7 SCC 1 the Hon'ble Supreme Court has held that the Arbitration Act is a complete Code. The scheme of the Act is such that the question of jurisdiction is required to be raised during arbitration proceedings or soon after initiation thereof and the jurisdictional question is required to be determine as a preliminary issue.

14. Section 4 provides that a party who has knowledge of noncompliance of any requirement under the arbitration agreement or this Act and yet proceeds with the arbitration without stating his objection to such non-compliance and without undue delay shall be deemed to waive his right to raise objection. In “Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh” AIR 1968 SC 933 the Hon'ble Supreme Court has held that a waiver is an intentional relinquishment of known right and there can be no waiver unless it is established that the person against whom the waiver is claimed had full knowledge of his rights and measures to enforce such rights. The respondent who has taken an objection in his reply to the legal notice issued by the claimant must be held to have the knowledge about consequence of his non- appearance before the Arbitrator. His reply dated 4th February 2005 refers to the provisions of the Act and, therefore, it must be concluded that has knowledge of the provisions under sections 4, 5, 16 and 25 of the Act.

15. In “McDermott International Inc.” the Hon'ble Supreme Court has held as under: “51. After the 1996 Act came into force, under Section 16 of the Act the party questioning the jurisdiction of the arbitrator has an obligation to raise the said question before the arbitrator. Such a question of jurisdiction could be raised if it is beyond the scope of his authority. It was required to be raised during arbitration proceedings or soon after initiation thereof. The jurisdictional question is required to be determined as a preliminary ground. A decision taken thereupon 13 by the arbitrator would be the subject matter of challenge under Section 34 of the Act. In the event the arbitrator opined that he had no jurisdiction in relation thereto an appeal thereagainst was provided for under Section 37 of the Act.”

16. Section 16(2) provides that a party which has appointed the Arbitrator or participated in the appointment of an Arbitrator shall not be precluded from raising a plea that the Arbitral Tribunal does not have jurisdiction in the matter. Sub-section (6) to section 16 provides that a party 10 Comm. Appeal. No.21 of 2019 aggrieved by an Arbitral Award may make an application in accordance with section 34. Sub- section (6) would therefore necessarily imply that objection to the authority and jurisdiction of the Arbitrator can be challenged only on the grounds specified under section 34.

17. Clause (b) to section 25 provides that if the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23 the Arbitral Tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegation by the claimant and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited. Clause (c) further provides that if a party fails to appear at an oral hearing or to produce documentary evidence, the Arbitral Tribunal may continue the proceedings and make the Award on the evidence before it.

18. A conjoint reading of clause (b) and clause (c) of section 25 read with section 4 would be that the respondent, who inspite of notice of the arbitral proceedings if fails to file his statement of defence or fails to appear at the oral hearing or to produce documentary evidence cannot be permitted to challenge the appointment of the Arbitrator. After his appointment the Sole Arbitrator has issued notice to the parties. The respondent has admitted in his petition under section 34 that a notice dated 21st January 2005 was issued by the Sole Arbitrator urging him to appear in the arbitral proceedings. The respondent has further stated that in a response to the notice issued by the Sole Arbitrator on 21st January 2005 he forwarded a copy of his reply dated 4th February 2005 to the Sole Arbitrator.

19. In our opinion, after having received notice from the Arbitrator on 21st January 2005, the only recourse available to the respondent was to file an application seeking termination of the mandate of the Arbitrator or to appear before the Arbitrator and challenge his authority and jurisdiction to proceed with the arbitral proceedings.”

25. This Court is of the considered view that the respondent not only had the opportunity, but also had the knowledge that they were to participate in the arbitral proceedings to raise any objection regarding the jurisdiction of the Arbitrator, if any, with regards to its appointment etc. which was to be raised in terms of Section 16 of the Act, 1996, but they consciously chose not to appear before the learned Arbitrator and having not appeared before the learned arbitrator, they took a chance and allowed the arbitrator to proceed and when the 14 arbitral award was passed, they challenged the same on the point of jurisdiction and the mode of appointment of the learned Arbitrator by filing an petition under Section 34 of the Act, 1996. 26. In view of the aforesaid findings and also the judgment relied upon by the learned counsel for the appellant passed by this Court in Commercial Appeal No. 21 of 2019 (supra), the impugned order setting aside the award is not sustainable in the eyes of law, which is hereby set-aside. 27. This appeal is hereby allowed. 28. Pending interlocutory application, if any, is closed. Mukul (Anubha Rawat Choudhary, J.)