Fresh Arbitration for second time and fresh Appointment of Arbitrator

HPCL had given tender for construction of a sewage treatment reclamation plant at a refinery.  The purchase order dated 27.2.1992 contained arbitration clause.

In the first round of arbitration proceedings, the first Arbitral Award dated 23.3.1999 was upheld in section 34 petition.  It was, however, set-aside in section 37 appeal by the Division Bench on 2.11.2007.  The appeal of the petitioner was dismissed by the Supreme Court on 21.9.2023.

Thereafter, on 12.10.2023, the petitioner initiated second round of arbitration on the ground that its claims were not dismissed on merits and the earlier arbitral award was set-aside.

HELD that the vexed question of whether the application for fresh arbitration proceedings constitutes the proverbial “second bite at the cherry” has to, in my opinion, be necessarily answered in the negative.

In my opinion, the SC Judgment is clearly an opinion that the Arbitral Award ought to have been held as not being sustainable in exercise of the jurisdiction under Section 37 read with Section 34 of the Act.   The Supreme Court explicitly ruled that it was not commenting on the merits.   Taking such explicit findings into account and that too, in the context of the specific nature of the jurisdiction that Section 34 and Section 37 of the Act entails, I am of the opinion that no case has bee made out to deviate from the norm that the parties are restored to the original pre-Arbitral Award position.   Therefore, necessarily, this Section 11 Application deserves to be allowed.  

Judgment dated 11.3.2025 of the High Court of Bombay in Arbitration Application No.338 of 2024 (OS) of Batliboi Environmental Engineering Ltd   Vs.  Hindustan Petroleum Corporation Limited