CORE MINERALS vs HIMANGHINI SINGH
- Court
- Odisha High Court
ARBP/15/2024
ODHC010241252024
2026:OHC:292
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBP No.15 of 2024
CNR No.ODHC010241252024
Core Minerals represented
by its authorized signatory
Mr. R. Muralidharan
…. Petitioner
-Versus-
Himanghini Singh Opposite Party
….
Advocates appeared in this case:
For Petitioner : Mr. Partha Mukherji, Advocate
For Opposite Party : Mr. Lalitendu Mohapatra,
Advocate
CORAM:
HON’ BLE THE CHIEF JUSTICE
J U D G M E N T
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12.11.2026
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HARISH TANDON, CJ.
1. This is an application under Section 11(6) of the Arbitration and
Conciliation Act, 1996 (the Act ) for appointment of an Arbitrator on
„ ‟
the premise that two of the Arbitrators constituting an Arbitral Tribunal
died.
ARBP No.15 of 2024 Page 1 of 18
2. The salient features pleaded in the said petition are succinctly
th
narrated hereunder. Two agreements dated 15 May, 2002 were entered
into between the predecessor-in-interest of petitioner and the
predecessor-in-interest of opposite party for raising of an iron ore and
sale of iron ore respectively. The predecessor of the opposite party was
seized and possessed of an iron ore mine upon execution of a lease by
the Government in his favour and was carrying on the mining business
as a sole proprietor of M/s. K.J.S Ahluwalia. The aforesaid agreements
were entered into with the petitioner by the said proprietor being a
partnership firm, which contain an arbitration clause in both the
agreements whereby and whereunder the parties have agreed to get the
dispute determined through an Arbitral Tribunal. Since the arbitration
clauses in both the agreements are identical, therefore, reproduction of
one would be sufficient enough for the instant purpose. The said
arbitration clause runs thus:
“ 15. If at any time any dispute or question arises
between the parties touching the meaning,
construction or effect of this agreement or of any
clause or thing herein contained or regarding the
respective liabilities and rights under this agreement
then every such dispute or question except where
ARBP No.15 of 2024 Page 2 of 18
specifically provided shall be referred to arbitration,
as per the provisions of the Arbitration and
Conciliation Act, 1996, as amended from time to
time, to, two arbitrators, one each to be appointed by
each party hereto, within one month from the date of
notice invoking this arbitration clause is issued to
the opposite party and the arbitrators shall enter
upon reference within one month from the date of
their respective appointment and the arbitrators/
umpire shall give a speaking award. The place of
arbitration or sitting shall be at
BHUBANESHWAR.
”
3. It is averred in the instant petition that father of opposite party in
contravention of the various terms and conditions embodied in the
aforesaid agreements demanded higher amount than what was agreed
upon, which created hindrance in working at the mines thereby impeded
not only the raising of the ores but also selling thereof. Thus, the
dispute cropped up with regard to the respective obligations contained
th
in the aforesaid agreements, and the letter was issued on 16 August,
2009 invoking arbitration clause. The petitioner herein immediately
approached the District Court, Bhubaneswar under Section 9 of the Act
for interim relief, which gave rise to registration of Arbitration Petition
ARBP No.15 of 2024 Page 3 of 18
No.180 of 2009. Since no interim relief was granted in the said
proceeding by the District Judge, the approach was made to this Court
by filing ARBA No.93 of 2009. The High Court also did not interfere
with the order passed by the District Judge under Section 9 of the said
Act, which led the petitioner to file a Special Leave Petition being SLP
No.24007 of 2010 before the Apex Court. Amidst the pendency of the
said SLP, the petitioner caused a letter appointing an Arbitrator on its
behalf and the predecessor-in- interest of opposite party also responded
thereto by appointing the Arbitrator on its behalf in terms of the said
nd
arbitration clause. The said SLP came up before the Bench on 22
November, 2011 when the Apex Court disposed of the same taking into
notice the facts that both the parties have nominated their Arbitrators in
terms of the said arbitration clause, therefore, it becomes necessary to
appoint a third Arbitrator. Ultimately, the Apex Court appointed the
third Arbitrator to act as a Chairman of the Arbitral Tribunal, and the
liberty was also granted to the petitioner herein to move the Arbitral
Tribunal for interim relief under Section 17 of the Act. After
constitution of the Arbitral Tribunal in terms of the order passed by the
Supreme Court, the petitioner filed a statement of claim, but despite the
ARBP No.15 of 2024 Page 4 of 18
service of notice as well as copy of the statement of claim, no counter
claim was filed by the predecessor-in-interest of the opposite party.
4.
After securing several adjournments, the counter claim was filed
at a belated stage with the prayer for acceptance thereof, and the
Arbitral Tribunal mechanically accepted the counter claim without
adverting to the objection raised by the petitioner. The said order
accepting the counter claim belatedly was assailed before this Court in a
writ petition being W.P.(C) No.20900 of 2012. The writ petition was
entertained by the High Court and all further proceeding of the Arbitral
Tribunal was stayed. During the pendency of the said writ petition,
several opportunities were given to the predecessor-in-interest of
opposite party to file counter affidavit, but the same was filed belatedly.
In the interregnum, the petitioner came to know that the tenure of the
lease granted in favour of the father of opposite party has expired by
efflux of time and also the Presiding Arbitrator as well as the Arbitrator
appointed by the petitioner have also died in the meantime. Even the
father of opposite party also died during pendency of the said writ
petition, which was not communicated to the petitioner. The aforesaid
facts led the petitioner to withdraw the said writ petition with liberty to
raise all points of dispute before the newly appointed Arbitral Tribunal,
ARBP No.15 of 2024 Page 5 of 18
th
which, in fact, was granted by the High Court on 30 October, 2023.
Subsequently, the petitioner issued a further notice intimating the facts
that since two of the Arbitrators have expired in the meantime, the
petitioner choses to appoint another Arbitrator and calling upon the
opposite party to name its Arbitrator. Since there was no response to the
th
said letter despatched on 5 October, 2023, further letters were caused
th th
on 28 November, 2023 and 20 December, 2023 in furtherance thereto
calling upon the opposite party to confirm the appointment of its
nominated Arbitrator and also to take steps for appointment of
Presiding Arbitrator. Perceiving the apathetical attitude having shown
by opposite party, the instant petition is taken out by the petitioner for
appointment of Arbitrators.
5.
The opposite party contested the instant petition by filing a
counter affidavit, and the major defence taken therein that once the time
within which the award is to be published under Section 29A of the said
Act expires, in absence of any extension of time, the petition has
become time barred.
6. It is argued on behalf of the petitioner that since two of the
Arbitrators have passed away during pendency of the writ petition
ARBP No.15 of 2024 Page 6 of 18
before this Court, and opposite party having not responded to the letters
issued in this regard, it is a fit case where the appointment has to be
made to the Presiding Arbitrator. It is further submitted that once two of
the Arbitrators died, the question of applicability of Section 29A does
not arise as the mandate of the Arbitral Tribunal gets terminated under
Section 15 of the said Act. The reliance is placed upon a judgment of
the Apex Court in Huawei Technologies Company Limited v. Sterlite
Technologies Limited reported in (2016) 1 SCC 721 for the proposition
that once the procedure for appointment of the Arbitrator is provided in
the arbitration agreement/clause, the appointment procedure under
Section 15 of the said Act is to be adhered to. It is further submitted that
mere death of an Arbitrator does not invalidate the arbitration
agreement, and there is no fetter on the part of the Court in constituting
an Arbitral Tribunal, and placed reliance upon a judgment of the Apex
Court in Khorshed E. Nagarwalla v. Daryus Soley Panthakey
reported in 2010 (4) Mh. L. J. 936 . It is further submitted that in a
recent decision rendered in Shailesh Dhairyawan v. Mohan
Balkrishna Lulla reported in (2016) 3 SCC 619 (Civil Appeal No.8731
of 2015 decided on October 16, 2015), the Apex Court further held that
in the event two Arbitrators out of three died, substituted Arbitrator can
ARBP No.15 of 2024 Page 7 of 18
be appointed in terms of the arbitration clause. It is, thus, submitted that
since one of the Arbitrators nominated by the opposite party is alive, the
petitioner has named the Arbitrator in terms of the said arbitral clause,
the Court may appoint a Presiding Arbitrator.
7. Section 15 of the Act contains an exhaustive provision relating to
the termination of the mandate of an Arbitrator. It is indicated in the
said Section that where the Arbitrator withdraws from his office for any
reason or on an agreement of the parties, the mandate of the Arbitrator
would terminate, and substituted Arbitrator may be appointed according
to the r applicable to the appointment of an Arbitrator being
„ ules‟
replaced. In Yashwith Construction P. Ltd. v. Simplex Concrete Piles
India Ltd. reported in (2006) 6 SCC 204 , the question arose that once
the arbitral clause reserves power upon the Managing Director of the
Company to appoint and/or nominate the Arbitrator on behalf of the
Company and if the Arbitrator withdraws from an office, whether the
said Managing Director would be competent to substitute the Arbitrator
under the said clause. Sub-Section 2 of Section 15 of the said Act came
for an active consideration, which provides that the substituted
Arbitrator can only be appointed according to the rules. What would be
the meaning of the word rules appearing in the said Section was
„ ‟
ARBP No.15 of 2024 Page 8 of 18
answered with clarity that whatever the procedures agreed upon the
party under the arbitration agreement such procedures shall partake a
character of a rule in the following:
“ 4. xxx. It is true that in the arbitration agreement
there is no specific provision authorising the
Managing Director to appoint a substitute arbitrator
if the original appointment terminates or if the
originally appointed arbitrator withdraws from the
arbitration. But, this so-called omission in the
arbitration agreement is made up by the specific
provision contained in Section 15(2) of the Act. The
withdrawal of an arbitrator from the office for any
reason is within the purview of Section 15(1)(a) of
the Act. Obviously, therefore, Section 15(2) would
be attracted and a substitute arbitrator has to be
appointed according to the rules that are applicable
for the appointment of the arbitrator to be replaced.
Therefore, what Section 15(2) contemplates is an
appointment of the substituted arbitrator or the
replacing of the arbitrator by another according to
the rules that were applicable to the appointment of
the original arbitrator who was being replaced. xxx. ”
ARBP No.15 of 2024 Page 9 of 18
8. The same view was expressed in a subsequent decision rendered
in Huawei Technologies Company Limited (supra) in the following:
“ 8. Clause 22.3 of the supply contract contemplates
appointment of a sole arbitrator by the parties by
mutual consent. In a situation where the original
arbitrator i.e. Shri Justice S.K. Dubey had recused
himself the substitute or new arbitrator is required to
be appointed according to the rules that were
applicable to the appointment of the original
arbitrator. This is the mandate of Section 15(2) of
the Act. It was, therefore, incumbent on the
petitioner to give notice and explore the possibility
of naming an arbitrator by mutual consent and only
on failure thereof the present application under
Section 11(6) of the Act could/should have been
filed. The above recourse is required to be followed
by virtue of the provisions of Section 15(2) of the
Act and the decision of this Court in Yashwith
Constructions (P) Ltd. [(2006) 6 SCC 204]
Admittedly, the same had not been followed. In
these circumstances, the Court will understand the
present application/arbitration petition to be
premature. It is accordingly not entertained leaving
it open for the petitioner to act appropriately, if so
ARBP No.15 of 2024 Page 10 of 18
advised, in terms of the present order and thereafter
seek its remedies as provided by law.
”
9. In Shailesh Dhairyawan (supra), the Apex Court after noticing
the above noted decisions held that if the fresh appointment is not made
despite the written notice having given in this regard, there is no fetter
on the part of the Court to step in, provided the procedure for
appointment has been strictly complied with in the following:
19. The scheme of Section 8 of the 1940 Act and
“
the scheme of Section 15(2) of the 1996 Act now
need to be appreciated. Under Section 8(1)( b ) read
with Section 8(2) of the 1940 Act if a situation arises
in which an arbitrator refuses to act, any party may
serve the other parties or the arbitrators, as the case
may be, with a written notice to concur in a fresh
appointment, and if such appointment is not made
within 15 clear days after service of notice, the
Court steps in to appoint such fresh arbitrator who,
by a deeming fiction, is to act as if he has been
appointed by the consent of all parties. This can only
be done where the arbitration agreement does not
show that it was intended that the vacancy caused be
not supplied. However, under Section 15(2), where
the mandate of an arbitrator terminates, a substitute
ad Section 15(2)
arbitrator “shall” be appointed. H
ARBP No.15 of 2024 Page 11 of 18
ended there, it would be clear that in accordance
with the object sought to be achieved by the
Arbitration and Conciliation Act, 1996 in all cases
and for whatever reason the mandate of an arbitrator
terminates, a substitute arbitrator is mandatorily to
be appointed. This Court, however, in the judgments
noticed above, has interpreted the latter part of the
section as including a reference to the arbitration
agreement or arbitration clause which would then be
“the rules” applicable to the a ppointment of the
arbitrator being replaced. It is in this manner that the
scheme of the repealed Section 8 of the 1940 Act is
resurrected while construing Section 15(2) of the
1996 Act. The arbitration agreement between the
parties has now to be seen, and it is for this reason
that unless it is clear that an arbitration agreement on
the facts of a particular case excludes either
expressly or by necessary implication the
substitution of an arbitrator, whether named or
otherwise, such a substitution must take place. In
fact, sub-sections (3) and (4) of Section 15 also
throw considerable light on the correct construction
of sub-section (2). Under sub-section (3), when an
arbitrator is replaced, any hearings previously held
by the replaced arbitrator may or may not be
repeated at the discretion of the newly-appointed
ARBP No.15 of 2024 Page 12 of 18
Tribunal, unless the parties have agreed otherwise.
Equally, orders or rulings of the earlier Arbitral
Tribunal are not to be invalid only because there has
been a change in the composition of the earlier
Tribunal, subject, of course, to a contrary agreement
by parties. This also indicates that the object of
speedy resolution of disputes by arbitration would
best be subserved by a substitute arbitrator
continuing at the point at which the earlier arbitrator
has left off.
20. On the facts of the present case, it is clear that
there is nothing in Clause 8 of the consent terms
extracted above to show that the resignation of
Justice Sujata Manohar would lead to her vacancy
not being supplied. All that the parties have done by
the said clause is to agree to refer their disputes to
the arbitration of an independent retired Judge
belonging to the higher judiciary. There is no
personal qualification of Mrs Justice Sujata Manohar
that is required to decide the dispute between the
parties. In fact, she belongs to a pool of independent
retired High Court and Supreme Court Judges, from
which it is always open to the appointing authority
to choose a substitute arbitrator. One example will
suffice to show that Clause 8 in the present case
cannot be construed to either expressly or by
ARBP No.15 of 2024 Page 13 of 18
necessary implication exclude the appointment of a
substitute arbitrator. Take the case of a family
dispute in which the arbitration clause clearly
specifies that a particular grand-uncle of a joint
family is the only person in whom all members of
the family have confidence as a result of which he
has been appointed arbitrator to resolve their
disputes. In the case of resignation or death of such
grand-uncle, it could possibly be contended that by
necessary implication no other person was
competent to arbitrate disputes between the family
members and that, therefore, on such resignation or
death, the arbitration clause would spend its force. In
the present case, as has been noted above, we do not
have any such factual scenario nor do we have
expressions such as “only” which would indicate
that the confidence of the parties was in only the
named arbitrator and in nobody else.
21. In fact, as has correctly been pointed out by the
learned counsel for the respondent, Section 89 CPC
specifically provides that a court hearing a suit may
formulate terms of settlement between the parties
and may either settle the same or refer the same for
settlement by conciliation, judicial settlement,
mediation or arbitration. On the facts in the present
case, it is clear that following the mandate of Section
ARBP No.15 of 2024 Page 14 of 18
89, the Bombay High Court disposed of the suit
between the parties by recording the settlement
between the parties in Clauses 1 to 7 of the consent
terms and by referring the remaining disputes to
arbitration. In the present case therefore it is clear
that it is the Bombay High Court that was the
appointing authority which had in fact appointed
Mrs Justice Sujata Manohar as arbitrator in terms of
Clause 8 of the consent terms. We must remember,
as was held in C.F. Angadi v. Y.S. Hirannayya [ C.F.
Angadi v. Y.S. Hirannayya , (1972) 2 SCR 515 at p.
523 : (1972) 1 SCC 191 at pp. 197-199] , that an
order by consent is not a mere contract between the
parties but is something more because there is
superadded to it the command of a Judge. On the
facts of the present case, it is clear that the Bombay
High Court applied its mind to the consent terms as
a whole and appointed Mrs Justice Sujata Manohar
as arbitrator for the disputes that were left to be
resolved by the parties. The said appointing
authority has been approached by the respondent for
appointment of a substitute arbitrator, which was
then done by the impugned judgment. This would
les that were
therefore be “according to the ru
applicable to the appointment of the arbitrator being
replaced” in accordance with Section 15(2) of the
ARBP No.15 of 2024 Page 15 of 18
Act. We, therefore, find that the High Court
correctly appointed another independent retired
Judge as substitute arbitrator in terms of Section
15(2) of the Arbitration Act, 1996. The appeal is,
therefore, dismissed. ”
10. It is, thus, manifest from the above decisions that even on the
death of the Arbitrator, the mandate would terminate, and in view of
Section 15(2) of the Act, there is no embargo on the part of the Court to
appoint the Presiding Arbitrator. In the instant case, the Arbitrator
nominated by the petitioner died during pendency of the writ petition so
also the Presiding Arbitrator appointed by the Apex Court. The
petitioner immediately caused a letter nominating and/or appointing an
Arbitrator on its behalf, and since the surviving Arbitrator nominated
and/or appointed by the opposite party is still alive, the confirmation
and/or concurrence was also sought, which, in my opinion, was not
warranted. By death of the Arbitrator, the mandate of the Arbitral
Tribunal is terminated, but it does not terminate the arbitration clause.
The said arbitration agreement/clause remains binding on the parties,
and therefore, the parties cannot wriggle out of the same.
ARBP No.15 of 2024 Page 16 of 18
11. The applicability of Section 29A of the Act is misplaced for the
simple reason that once the mandate of the arbitrator is terminated and
the Arbitral Tribunal becomes defunct, the question of applicability of
the said Section does not arise. The expression “ mandate of the
Arbitrator terminates ” has to be understood that the composition of the
Arbitral Tribunal gets affected, and therefore, there is no fetter on the
part of the Court in appointing a substituted Arbitrator. In the instant
case, since one of the Arbitrators appointed by the opposite party is
alive and there is no letter caused to withdraw such appointment, it
would be presumed that the opposite party continues to appoint the said
Arbitrator. So far as the Arbitrator appointed on behalf of the petitioner
is concerned, the name has been duly communicated, which is in tune
with the said arbitration agreement/clause.
12. Since the Apex Court has appointed the Presiding Arbitrator,
who also expired in the meantime, I do not find any fetter on the part of
the Court to appoint a Presiding Arbitrator under Section 11(6) of the
Act. Accordingly, Mr. Justice Ananga Kumar Patnaik, Former Judge
of the Supreme Court of India, is hereby appointed as the Presiding
Arbitrator along with the arbitrators nominated by the respective
parties. The said Arbitral Tribunal shall immediately proceed with the
ARBP No.15 of 2024 Page 17 of 18
arbitration proceedings from the stage when the earlier Arbitral
Tribunal becomes defunct. The arbitration shall take place under the
ageis of the High Court of Orissa Arbitration Centre. Remuneration of
the arbitrators shall be equally paid by the parties as may be agreed
upon. The Arbitral Tribunal shall make effort to adhere the time limit
set forth in Section 29A of the said Act.
13. The arbitration petition is disposed of accordingly. A copy of this
judgment be communicated to the learned Presiding Arbitrator
forthwith.
(Harish Tandon)
Chief Justice
M. Panda
Signature Not Verified
Digitally Signed
Signed by: MRUTYUNJAYA PANDA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 12-Nov-2026 15:26:39
ARBP No.15 of 2024 Page 18 of 18