Full Judgment Text
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CASE NO.:
Appeal (civil) 7063-7065 2000
PETITIONER:
M/S.NATIONAL HEAVY ENGINEERING COOPERATIVE LTD.
Vs.
RESPONDENT:
M/S.KING BUILDERS
DATE OF JUDGMENT: 04/12/2000
BENCH:
D.P.Mohapatro, Shivaraj Patil
JUDGMENT:
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J U D G M E N T
D.P.MOHAPATRA, J.
Leave granted. All these appeals are inter-linked
with each other. The parties are the same and common
questions arising from the same set of facts are involved in
all these cases which were disposed of by the High Court of
Rajasthan by a common judgment. While SLP (C)
Nos.10917-10918 of 1999 are directed against the judgment
passed by the High Court in Miscellaneous Appeal
Nos.283 of 1992 and 825 of 1994 filed under Section 39
of the Arbitration Act, 1940, SLP (C) Nos.9170-9172 of 1999
are directed against Civil Review Petition Nos.117 of 1997
and 118 of 1997 arising from the judgment/order passed in
the said two appeals and Civil Miscellaneous Appeal No.691
of 1997. In Civil Miscellaneous Appeal No.691 of 1997, the
appellant- M/s.National Heavy Engineering Cooperative Ltd.
(hereinafter referred to as the ’company’) challenged the
order passed by the District Judge, Jaipur City, appointing
the arbitrator in compliance with the direction passed by
the High Court in the appeals. In Civil Miscellaneous
Appeal No.283/92, the order passed by the District Judge on
24.2.1992, allowing the application filed by M/s.King
Builders (hereinafter referred to as the ’contractor’) for
appointment of an arbitrator and directing the company to
take steps for appointment of an arbitrator in accordance
with Clause 66 of the agreement within one month, was under
challenge. Civil Miscellaneous Appeal No.825 of 1994 was
filed by the contractor challenging the order dated
31.1.1994 dismissing the contractor’s application under
Section 8 of the Act. The High Court, on consideration of
the matter, dismissed appeal No.283 of 1992 and confirmed
the order dated 24.2.1992 passed by the Subordinate Judge
and allowed the appeal No.825 of 1994 and set aside the
order dated 31.1.1994 passed by the Subordinate Judge. The
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High Court, while allowing the contractor’s application
filed under Section 8 of the Act, directed the District
Judge, Jaipur city to appoint an arbitrator for adjudication
of the dispute which has arisen between the parties within
one month. In paragraph 6 of the counter affidavit filed by
the contractor in this Co urt, it has been averred
inter alia that the trial Court, in compliance of the
judgment and order of the Additional Chief Engineer , High
Court, appointed one Shri M.M.Singh, retired P.W.D. as the
arbitrator.It is relevant to state here that the Tilam Sangh
had suggested appointment of Sri K.C.Puri, a former
Executive Engineer to act as the sole arbitrator. The
question that arises for consideration is who is to act as
arbitrator for adjudication of the disputes raised by the
parties in the case; whether it is the former Additional
Chief Engineer appointed by the Court or the former
Executive Engineer as suggested by Tilam Sangh. The High
Court has taken the view that the arbitrator appointed by
the lower court, in compliance with the order of the High
Court dated 19th May, 1997, should act as the arbitrator.
We have heard learned counsel appearing for both the parties
and perused the impugned order/judgment passed by the High
Court.
The learned counsel for the appellant strenuously
urged that only the arbitrator appointed by the
Administrative Head of the Tilam Sangh is entitled to act as
arbitrator since his appointment is in terms of Clause 66 of
the Agreement between the parties. The learned counsel
appearing for the respondent on the other hand contended
that since the arbitrator appointed by the Court is a former
Additional Chief Engineer who is more experienced than the
former Executive Engineer appointed by the Administrative
Head of Tilam Sangh, this Court should not interfere with
the order passed by the High Court in which the appointment
of the former has been confirmed. Alternatively he
contended that if the appellant is agreeable, a retired High
Court Judge may be appointed as arbitrator in the case.
Considering the nature of the controversy raised in the
case, we specifically asked the learned counsel for the
appellant if the appellant has any serious objection against
the continuance of the arbitrator appointed by the Court and
if so, the basis for the same. We also put it to the
learned counsel that whether the appellant is agreeable for
appointment of a retired High Court Judge as arbitrator. To
both these questions, the learned counsel could not offer
any specific reply. As noted earlier, the District Judge
appointed a former Addl. Chief Engineer as arbitrator in
compliance with the direction in the order passed by the
High Court. It is stated by learned counsel for the
respondent that the said arbitrator has already entered upon
the reference but the matter could not proceed further in
view of the interim order passed by this Court on 30th July,
1999. Considering the facts and circumstances of the case
and the submissions made by learned counsel for the parties,
we are of the view that the order of the High Court
confirming the appointment of arbitrator by the lower court
warrants no interference in exercise of the jurisdiction
under Article 136 of the Constitution. Accordingly, the
Civil Appeals are dismissed. No costs.