Judgment The above Petition is filed under Section 9 of the Arbitration and Conciliation Act, 1996 (“the said Act”) by the Petitioner, M/s. Nagpur Sical Gupta Road Terminal Limited, inter alia seeking recall of the Order dated 10th July, 2012, passed by this Court in Arbitration Petition (L) No. 655 of 2012 and Arbitration Application filed under Section 11 of the said Act bearing Arbitration Application (L) No. 870 of 2012. 2. The Petitioner Company was established in the year 2007, and is a Joint Venture Company (‘JVC’) for the purpose of implementation of the project concerning development, operation and management of the Road Terminal in the MIHAN Project Area at Nagpur, alongwith the Respondent herein i.e. Maharashtra Airport Development Company Limited (‘MADC’). The Petitioner and the Respondent had entered into a Concession Agreement dated 20th April 2007 (“the said Agreement”). Under Clause 13.2 of the said Agreement the Petitioner and the Respondent have agreed to have their disputes and differences arising out of the said Agreement arbitrated by the named Arbitrator Mr. R.C. Sinha, the then Managing Director of the Respondent. 3. The Respondent by its letter dated 4th October, 2011 terminated the said Agreement. The Petitioner vide its letter dated 22nd November, 2011 addressed to the Respondent disputed the termination and objected to the appointment of the named Arbitrator Mr. R.C. Sinha, on the ground that there was reasonable apprehension of bias and requested the Respondent to appoint an independent and impartial Arbitrator. The Respondent by its letter dated 26th April, 2012, without going into the allegations of bias against Mr. R.C. Sinha, appointed Dr. P.S. Meena, Principal Secretary, GAD (Civil Aviation), Government of Maharashtra as the sole Arbitrator to adjudicate the disputes raised by the Petitioner against the Respondent . 4. In July 2012, the Petitioner filed an Arbitration Application (Lodging) No. 870 of 2012 under Section 11 of the said Act seeking appointment of an independent and impartial Arbitrator. The Petitioner also filed a Petition under Section 9 of the Act being Arbitration Petition (Lodging) No. 655 of 2012, seeking certain interim protective reliefs. In paragraph 31 of the said Application filed by the Petitioner under Section 11 of the Act, the Petitioner stated as follows: “Thesaid proposed Arbitrator could also not be construed as independent and impartial since he is in some manner connected with the Respondent”. In paragraph 31 of the said Application filed by the Petitioner under Section 11 of the Act, the Petitioner stated as follows: “Thesaid proposed Arbitrator could also not be construed as independent and impartial since he is in some manner connected with the Respondent”. In paragraph 33 of the said Application, the Petitioner stated as follows: “P.S. Meena also being associated with the aviation department, cannot be construed to be an independent Arbitrator”. 5. On 10th July 2012, when this Court took up Arbitration Petition (Lodging) No. 655 of 2012 (under Section 9 of the said Act) and Arbitration Application (Lodging) No. 870 of 2012 (under Section 11 of the said Act) for hearing, the Learned Senior Advocate Mr. Arif Bookwala on instructions informed the Court that he is not objecting to Dr. Meena being appointed as the sole Arbitrator. This Court thereafter passed the following order: “1. Heard the learned Advocates appearing for the parties. (i) The disputes between the parties are referred to the sole arbitration of Dr. P.S. Meena, I.A.S. Principal Secretary-GAD, Civil Aviation, Govt. of Maharashtra, Mantralaya, Mumbai-400 032. (ii) The Petition filed under Section 9 of the Arbitration & Conciliation Act 1996 (“the Act”) by the Petitioner shall be treated as a Petition under Section 17 of the Act by the learned Arbitrator and shall be disposed of within a period of four weeks from today. (iii) The Petitioner Company is at liberty to file a further affidavit in the said Petition within a period of one week from today. The Respondents may respond to the same on or before 20th July 2012. (iv)The parties shall appear before the learned Arbitrator on 17th July 2011 at 11.00 a.m. and obtain necessary directions. (v) The learned Arbitrator shall endeavour to pass his Award within six months from today. (vi)The costs of the Arbitration shall be borne by the parties equally. (vii) All contentions of the parties are kept open. 2. The Arbitration Petition filed under Section 9 of the Act and the Arbitration Application filed under Section 11 of the Act shall stand disposed of.” 6. Pursuant to the said order, the Parties appeared before the Learned Sole Arbitrator Dr. Meena on 17th July, 2012, when the Learned Arbitrator passed certain directions which according to the Petitioner was not in terms of the order dated 10th July, 2012. Pursuant to the said order, the Parties appeared before the Learned Sole Arbitrator Dr. Meena on 17th July, 2012, when the Learned Arbitrator passed certain directions which according to the Petitioner was not in terms of the order dated 10th July, 2012. The Petitioner therefore filed Arbitration Petition (L) No. 1055 of 2012, inter alia seeking recall of the appointment of Dr. Meena as the Sole Arbitrator on the ground that he was acting in violation of the order passed by this Court. Since this Court was of the view that the order dated 10th July, 2012 was misunderstood by the Learned Arbitrator and the Learned Arbitrator had not committed any willful breach of the said order, this Court did not accede to the request of the Petitioner to recall the appointment of Dr. Meena, but instead passed the following order on 3rd August, 2012: “Heard the learned Counsel appearing for the parties and the following order is passed. (I) The learned Arbitrator shall commence hearing of the interim application under Section 17 of the Arbitration and Conciliation Act, 1996 on 10th August, 2012 and shall pass his interim orders/Award on or before 20th August 2012. (ii) The Respondents to file their sur-rejoinder if any, on or before 9th August, 2012 and forthwith serve the same on the Advocate for the Petitioner. (iii) The Petitioner shall be at liberty to request the learned Arbitrator to extend the time for filing statement of claim, written statement, admission and denial of documents and framing of issues. (iv) The parties shall appear before the learned Arbitrator today i.e. 3rd August, 2012 at 3.00 p.m. and obtain necessary directions in the matter. The Arbitration Petition is accordingly disposed of.” 7. On the same day i.e. 3rd August 2012, a meeting was held before the Learned Arbitrator, when the Learned Arbitrator disclosed to the Advocate for the Petitioner that he is an ex officio Director on the Board of the Respondent in his capacity as Additional Chief Secretary/Secretary of Civil Aviation Department, Government of Maharashtra. In the minutes of the said hearing held before the Learned Arbitrator on 3rd August, 2012, the Learned Arbitrator has recorded that pursuant to the aforestated disclosure made by him “the Learned Counsel for Claimant (i.e. the Petitioner) made a statement that Claimant has no objection for adjudication of the reference by the undersigned. In the minutes of the said hearing held before the Learned Arbitrator on 3rd August, 2012, the Learned Arbitrator has recorded that pursuant to the aforestated disclosure made by him “the Learned Counsel for Claimant (i.e. the Petitioner) made a statement that Claimant has no objection for adjudication of the reference by the undersigned. It was clarified to Learned Counsels of both parties that, as an arbitrator, the arbitration will be decided on merit without any bias or prejudice against or for either of the party”. In the said meeting held on 3rd August, 2012, the Learned Arbitrator also made a mention that he was new to the field of arbitration. The said minutes were received by the Advocates for the Petitioner on 7th August 2012. The Advocates for the Petitioner on 7th August 2012, itself responded to the minutes of the proceedings held on 3rd August, 2012 as follows: “As mentioned in the note, you had disclosed at the hearing that you are the ex-officio director of the Respondent company, for which we thank you. You also asked us to seek instructions from our client regarding whether this was acceptable to our clients, which unfortunately is not mentioned in the note. Though not mentioned in the note, we also appreciate your frank disclosure at the hearing that this was your first experience in conducting an arbitration. Unfortunately, the note which records the disclosure of your ex-officio directorship in the Respondent Company, does not record that we were to seek instructions from the clients, and therefore incorrectly records that we stated that the Claimant has no objection to your adjudication of the reference. We have taken instructions from our clients and would like to say that while we fully appreciate the disclosure of both the directorship of the Respondent Company as well as frank disclosure of your newness to the field of arbitration, the Claimant feels that it would be best that in view of the provisions of Section 12 and 13 of the Arbitration and Conciliation Act, 1996 you recused yourself from the captioned proceedings and we would request you to do so.” 8. The Learned Arbitrator addressed a letter dated 10th August 2012, in response to the Petitioner’s letter dated 7th August 2012, wherein the Petitioner had inter alia requested him to recuse himself from the arbitration proceedings in view of the provisions of Sections 12 and 13 of the Act. Paragraphs, 3, 4 and 5 of the letter of the Learned Arbitrator are relevant and are reproduced herein: “3. During proceedings held on 03/08/2012, sole Arbitrator made a disclosure, that he is an ex-officio director of MADC, the learned advocate for Claimants Adv. Zerick Dastur categorically said that they had no objection for adjudication of the reference. It is unfortunate that advocate for Claimants are taking objection subsequently. The letter dated 7/08/2012 addressed to the Sole Arbitrator by learned advocate for Claimants does not mention/disclose any bias. At the time of disclosure made by Sole Arbitrator during the proceeding held on 03/08/2012, no objection was raised by either side learned advocates and a clear impression was given that they do not have any objection to the disclosure. Even otherwise, the objection raised in the letter dated 07/08/2012 by the learned advocate for Claimants is not sustainable.(emphasis supplied). 4. The learned advocate for Claimants in above referred letter also referred to the statement of arbitrator that he is conducting arbitration 1st time, the said disclosure cannot be a ground to challenge the procedure and proceeding. The said statement cannot be construed as projected by the learned advocate for Claimants as disclosure sought. The objective of the aforesaid statement was informative and it was mere a suggestion to put up full facts of the case along with relevant sections of the prevailing laws by both parties. 5. Therefore, the objections raised by learned advocate for claimants are over ruled and proceedings would be held as scheduled on 13/8/2012 as per minutes recorded on 3rd August 2012.” 9. The Learned Arbitrator therefore rejected the application/request made by the Petitioner under the provisions of Sections 12 and 13 of the Act, and informed the Petitioner that he would be proceeding with the Arbitration as scheduled on 13th August, 2012. 10. The Learned Arbitrator therefore rejected the application/request made by the Petitioner under the provisions of Sections 12 and 13 of the Act, and informed the Petitioner that he would be proceeding with the Arbitration as scheduled on 13th August, 2012. 10. Before the aforesaid letter dated 10th August, 2012 was received by the Petitioner from the Learned Arbitrator, the Petitioner had forwarded their letter dated 11th August, 2012 to the Learned Arbitrator wherein the Petitioner recorded that the letter dated 7th August 2012 forwarded by the Petitioner to the Learned Arbitrator was an application made on behalf of the Petitioner in terms of Section 13 of the Act, pursuant to the disclosure under Section 12 (2) of the Act by the Learned Arbitrator of Directorship and inexperience in conducting arbitrations made by him, at the meeting held on 3rd August, 2012. It was further recorded that the position of the Learned Arbitrator as a Director of the Respondent gives rise to legitimate and justifiable doubts as to his impartiality and independence. By the said letter it was further recorded that if the Learned Arbitrator chose not to recuse himself before the hearing that is scheduled for 3.00 p.m. on August 13, 2012, then in that event, the Learned Arbitrator should decide the application dated 7th August, 2012 under Section 13 of the Act, after hearing the Advocates for the Petitioner. 11. Since the Petitioner had received the letter dated 10th August 2012 from the Learned Arbitrator, rejecting the objections raised by the Petitioner in their letter dated 7th August, 2012, the Advocates for the Petitioner on 13th August 2012, as recorded in the minutes of the proceedings sought an adjournment from the Learned Arbitrator till Friday, 17th August 2012 “in order to approach the Hon'ble High Court for appropriate relief against the order of sole Arbitrator dated 10th August, 2012”. The Advocates for the Respondent strongly objected to any adjournment being granted, however, since the Advocates for the Petitioner submitted before the Learned Arbitrator that they will request the High Court to revise the time schedule for the proceedings under Section 17 of the Act, the Learned Arbitrator adjourned the application under Section 17 of the Act to 17th August 2012 at 3.00 p.m. 12. The Petitioner thereafter filed the above Petition inter alia seeking recall of the order passed by this Court dated 10th July 2012 appointing Dr. The Petitioner thereafter filed the above Petition inter alia seeking recall of the order passed by this Court dated 10th July 2012 appointing Dr. Meena as a sole Arbitrator to decide the disputes between the parties arising out of the Concession Agreement dated 20th April, 2007, and also directing the Learned sole Arbitrator to decide the application under Section 17 of the Act within a period of four weeks from the date of the said order. 13. The Learned Advocate appearing for the Petitioner submitted that the Petitioner is entitled to seek and obtain recall of the said order dated 10th July, 2012 because the Respondent had suppressed from the Court as well as from the Petitioner that Dr. Meena was an ex officio Director of the Respondent Company. It is submitted that the said suppression is an abuse of the process of the Court and the Court would not have appointed Dr. Meena as a sole Arbitrator had the Court been so informed on 10th July 2012. It is submitted that the Petitioner also would not have consented for the appointment of Dr. Meena as a sole Arbitrator in the event of the Petitioner being aware of the said fact. In support of this contention, the Petitioner has relied on the decision of the Delhi High Court in Precision Engineers & Fabricators vs. Delhi Jal Board (2003 (1) ARB L.R. 606 (Del) Para 13). The Petitioner, in support of its contention that a Director of a Company cannot be appointed as an Arbitrator to decide the disputes arising out of an agreement to which such a Company is a party, more so when the said Director is not the named Arbitrator, relied on the decisions of the Hon'ble Supreme Court in the case of Denel (Proprietary) Ltd. vs. Bharat Electronics Ltd. (2010) 2 SCC 394) and Denel (Proprietary) Ltd. vs. Ministry of Defense (2012)2 SCC 759 ). The Learned Advocate appearing for the Petitioner also relied on the decision of the Hon'ble Supreme Court in the case of Dale and Carrington vs. P.K. Pratapan (2005) 1 SCC 212 , para 11 (d) at page 227)and submitted that it is now well settled that a Director of a Company acts on behalf of the company in a fiduciary capacity and he has to act for the benefit of and in the interest of the Company. It is therefore submitted that Dr. Meena is bound to act for the benefit and in the interest of the Company and therefore cannot act as an Arbitrator in a dispute arising out of an agreement between the Petitioner and the Respondent Company. It is therefore submitted on behalf of the Petitioner that the order dated 10th July, 2012 appointing Dr. Meena as the sole Arbitrator and the subsequent order dated 3rd August, 2012, be recalled and an independent and impartial person be appointed as a sole Arbitrator to decide the disputes between the Petitioner and the Respondent. 14. The Learned Senior Advocate appearing for the Respondent has denied and disputed all the contentions advanced on behalf of the Petitioner. He has submitted that prayer clause (a) of the Petition is a prayer for review, and review being a creature of statute, there is no provision in the Act for review of a decision taken under Section 11 of the said Act. In support of his contention, he has relied on the decision of the Supreme Court in the case of Kalabharti Advertising v. Hemant Narichania ( AIR 2010 SC 3745 ). He submitted that the case of Precision Engineers and Fabricators (supra) relied upon by the Petitioner was a case of fraud, as fraud vitiates everything. He has submitted that in the present case no fraud is pleaded or alleged and therefore the said decision of the Learned Single Judge of the Delhi High Court has no application to the facts of this case. 15. The Learned Senior Advocate appearing for the Respondent further submitted that the challenge as contemplated under Section 13 of the Act by the letter of the Petitioner dated 7th August 2012, did not succeed as can be seen from the ruling of the Learned Arbitrator dated 10th August 2012. The Petitioner therefore will have a remedy as mandated by Section 13 (5), under Section 34 of the said Act, after the passing of the Award. The Petitioner therefore will have a remedy as mandated by Section 13 (5), under Section 34 of the said Act, after the passing of the Award. He submitted that it is now well settled, that if the Arbitrator rejects an application under Section 13 of the Act in which there is an allegation of bias or malice or any other ground leading to a request for the Arbitrator's recusal, and the same is rejected, the legislative mandate is that the arbitration proceeding must go on and there is no scope for interference by a Court at that stage by either staying the arbitration or changing the Arbitrator. In such a case, the aggrieved party always has a right to urge the point of bias or malice or the kind in an application under Section 34 of the Act, if necessary. In support of this contention, the Respondent has relied on the decision of Bharat Heavy Electricals Ltd. vs. C.N. Garg and others (2003 Arb. L.R. 674 (Delhi) at para 8). 16. The Learned Senior Advocate appearing for the Respondent also submitted that the decisions cited by the Petitioner in the case of Denel (Proprietary) Ltd. vs. Govt. of India, Ministry of Defence (supra) are not applicable to the facts and circumstances of this case. Instead, the Learned Senior Advocate appearing for the Respondent relied on the decision of Indian Oil Corporation ltd. vs. Raja Transport Pvt. Ltd. (2009) 8 SCC 520 )to contend that high ranking officials of the Government and Public Sector Undertakings could act as Arbitrator, if so provided in the Arbitration Agreement. 17. In rejoinder, the Learned Senior Advocate appearing for the Petitioner, has denied and disputed the contentions raised by the Advocate for the Respondent. It is submitted by the Learned Advocate for the Petitioner that by the present petition the Petitioner is seeking recall of the order dated 10th July 2012 on the ground of suppression of facts and the Petitioner is not challenging the order passed by the Learned Arbitrator under Section 13 of the Act. Therefore it cannot be contended that the Petitioner should now impugn the decision of the Learned Arbitrator only at the time of impugning his Award under Section 34 of the Act. It is submitted that this Court has inherent powers to recall an order passed by it in ignorance of a material fact in the matter. 18. Therefore it cannot be contended that the Petitioner should now impugn the decision of the Learned Arbitrator only at the time of impugning his Award under Section 34 of the Act. It is submitted that this Court has inherent powers to recall an order passed by it in ignorance of a material fact in the matter. 18. I have considered the submissions advanced by the Senior Advocates appearing for the Parties. Section 12 of the Act sets out the grounds on which a party may challenge the appointment of an Arbitrator. Section 13 of the Act lays down the challenge procedure. The said Sections 12 and 13 being relevant are reproduced hereunder: “12. Grounds for challenge.- (1) Where a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him. (3) An arbitrator may be challenged only if (a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or (b) he does not possess the qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made. 13. Challenge procedure.- (1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator. (2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in subsection (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal. (3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. (3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. (4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award. (5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with Section 34. (6) Where an arbitral award is set aside on an application made under sub-section(5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.” Sub-section (1) of Section 12 of the said Act therefore provides that when a person is approached in connection with his possible appointment as an Arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. Such disclosure is not confined only to the commencement of Arbitral proceedings and therefore sub-section (2) requires the Arbitrator to make a disclosure from time to time during the course of the arbitration proceedings, which is / are likely to give rise to justifiable doubts as to his independence or impartiality. As provided in sub-section (3) an arbitrator can be challenged only if there exists circumstances giving rise to justifiable doubts as to his independence or impartiality, or if such arbitrator does not possess the qualifications agreed to by the parties. Sub-section (4) provides that a party may challenge an arbitrator who is appointed by him, or in whose appointment he has participated, only for grounds / reasons of which he attains knowledge after the appointment has been made. Any party desirous of raising a challenge to an arbitrator on the grounds specified in section 12 of the said Act, has to comply with the procedure laid down by section 13 of the said Act. Sub-section (4) of Section 13 of the Act provides that in the event of a party challenging the appointment of an Arbitrator is not successful, i.e. if the Arbitral Tribunal rejects the said challenge, the Arbitral Tribunal shall continue the arbitral proceedings and make an arbitral award. Sub-section (4) of Section 13 of the Act provides that in the event of a party challenging the appointment of an Arbitrator is not successful, i.e. if the Arbitral Tribunal rejects the said challenge, the Arbitral Tribunal shall continue the arbitral proceedings and make an arbitral award. Sub-section (5) provides that it is only after an arbitral award is made under sub-section (4) of Section 13 of the Act, that the party who has challenged the Arbitrator and whose challenge was not upheld, can challenge the said rejection in a petition filed under Section 34 of the Act. Sub-section (6) of Section 13 of the Act provides that when an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees. 19. In the instant case, the Learned Arbitrator in the meeting held on 3rd August, 2012, admittedly disclosed the fact that he being the Additional Chief Secretary (GAD), Civil Aviation, Govt. of Maharashtra is the ex officio Director of the Respondent Company. The Learned Arbitrator recorded the said fact in the minutes of the meeting titled “PROCEEDING” and forwarded the same to the Petitioner on 7th August, 2012. Keeping aside the controversy, as to whether the advocate appearing for the Petitioner on 3rd August 2012, informed the Learned Arbitrator that the Petitioner had no objection to proceed with the arbitration, from the correspondence annexed to the Petition it is established that according to the Petitioner they had participated in the appointment of Dr.Meena as the sole Arbitrator without being aware that he is the ex officio Director of the Respondent. Subsequently, according to the Petitioner, upon the disclosures made by the sole Arbitrator, justifiable doubts arose, as to his independence and impartiality requiring the Petitioner to apply to the Learned Arbitrator on 7th August 2012 under the provisions of Sections 12 and 13 of the Act, to recuse himself from acting as an Arbitrator in the matter. In the said application dated 7th August 2012, the Petitioner has not asked for any personal hearing from the Learned Arbitrator. The said application is not filed by the Petitioner without prejudice to their right to move this Court to seek any other orders. In the said application dated 7th August 2012, the Petitioner has not asked for any personal hearing from the Learned Arbitrator. The said application is not filed by the Petitioner without prejudice to their right to move this Court to seek any other orders. The said application admittedly submitted by the Petitioner to the Learned Arbitrator under the provisions of Sections 12 and 13 of the said Act, wherein the challenge raised by the Petitioner that the Learned Arbitrator being an ex officio Director of the Respondent, gave rise to justifiable doubts as to his independence or impartiality, was disposed of by the Learned Arbitrator vide his letter/order dated 10th August 2012, wherein the Learned Arbitrator rejected the challenge, and held that “Even otherwise, the objection raised in the letter dated 07/08/2012 by the learned advocate for Claimants is not sustainable”. The Learned Arbitrator has further held: “The learned advocate for Claimants in above referred letter also referred to the statement of arbitrator that he is conducting arbitration 1st time, the said disclosure cannot be a ground to challenge the procedure and proceeding. The said statement cannot be construed as projected by the learned advocate for Claimants as disclosure sought. The objective of the aforesaid statement was informative and it was mere a suggestion to put up full facts of the case along with relevant sections of the prevailing laws by both parties”. The Learned Arbitrator in paragraphs 5 and 6 of his order categorically stated that, “Therefore, the objections raised by learned advocate for claimants are over ruled and proceedings would be held as scheduled on 13/8/2012 as per minutes recorded on 3rd August 2012. Both parties to follow accordingly”. As recorded in the minutes, on 13th August, 2012, the Claimants informed the Learned Arbitrator, that the Petitioner is desirous of approaching this Court for appropriate relief against his order dated 10th August, 2012, thereby giving an impression that they want to impugn the order passed by the Learned Arbitrator dated 10th August, 2012. The Learned Arbitrator therefore recorded in the minutes of the meeting held on 13th August 2012 that “In view of request made by Advocate for Claimant to challenge the order of sole Arbitrator dated 10th August 2012 , the proceedings u/s 17 of Arbitration and Conciliation Act 1996 stand adjourned to 17th August 2012 at 3.00 p.m.”. 20. The Learned Arbitrator therefore recorded in the minutes of the meeting held on 13th August 2012 that “In view of request made by Advocate for Claimant to challenge the order of sole Arbitrator dated 10th August 2012 , the proceedings u/s 17 of Arbitration and Conciliation Act 1996 stand adjourned to 17th August 2012 at 3.00 p.m.”. 20. The Petitioner being aware that in view of sub-section (4) of Section 13 of the said Act the order dated 10th August 2012 cannot be set aside at this stage and can be challenged only after passing of the Award, under Section 34 of the said Act, have now through the above Petition, sought setting aside of the order passed by this Court dated 10th July, 2012 on the ground that the same was passed by this Court without being aware of the fact that the Learned Arbitrator was an ex officio Director of the Respondent Company and that the Respondent was also not aware of the said fact. In my view, the Petitioner who is represented by responsible Advocates all throughout, were aware of the fact that they were entitled to challenge the appointment of the Arbitrator on the ground that they had participated in his appointment without being aware that the Learned Arbitrator was ex-officio Director of the Respondent Company, and that the said disclosure was made to them only after his appointment on 10th July 2012. They were also aware that once an application is made on the ground available under Section 12 of the Act, and if the same is rejected by the Learned Arbitrator under Section 13 of the Act, they will not be entitled to challenge the same any further and will have to continue with the arbitration proceedings, and challenge the said decision of the Arbitrator only by way of an application under Section 34 of the Act. The Petitioner therefore after taking a chance of challenging the appointment of the Arbitrator under Section 13 of the Act, and after being unsuccessful, now cannot come to this Court and have a second round of challenge on the pretext that they are not challenging the order of the Learned Arbitrator declining to withdraw himself from the arbitration proceedings, but are in fact challenging his appointment on the ground that it was not disclosed to the Court or to them when they participated in his appointment that he was an ex officio Director of the Respondent, and therefore the order appointing him dated 10th July, 2012 should be recalled. Having moved the Learned Arbitrator under Section 13 of the Act, the Petitioner now cannot indirectly seek reliefs from this Court which are already rejected by the Learned Arbitrator by his order dated 10th August, 2012. The Petitioner therefore will have a remedy as mandated by Section 13 (5) of the Act, under Section 34 of the Act, upon passing of the Award. It is now well settled that if the Arbitrator rejects an application under Section 13 of the Act in which there is an allegation of bias or malice or any other ground leading to a request for the Arbitrator's recusal and the same is rejected, the legislative mandate is that the arbitration proceeding must go on and there is no scope for interference by a Court at that stage either by staying the arbitration or changing the Arbitrator. In such a case, the aggrieved party always has a right to urge the point of bias or malice or the kind in an application under Section 34 of the Act, if necessary. 21. In view of the above facts and circumstances, the above Arbitration Petition is dismissed with a clarification that all rights and contentions of the parties including the contention of the Petitioner that the Learned Arbitrator could not have proceeded with the arbitration proceedings being ex officio Director of the Respondent, are kept open and the same may be challenged at the time of challenging the final award under Section 34 of the Act. The Learned Arbitrator shall endeavour to decide the Application under Section 17 of the said Act on or before 10th October 2012, and shall further endeavour to pass his final Award on or before 31st December 2012.