Full Judgment Text
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PETITIONER:
SH.BHUPINDER SINGH BINDRA
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT28/07/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
PARIPOORNAN, K.S.(J)
CITATION:
1995 AIR 2464 1995 SCC (5) 329
JT 1995 (6) 612 1995 SCALE (4)821
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard both the counsel. The only question in
this case is whether the Civil Court, while exercising the
power under ss. 5, 8, 11 and 29 of the Arbitration Act, 1940
(for short,’the Act’) would be justified in revoking the
appointment of an arbitrator appointed in terms of clause
25-a of the contract. Clause 25-a reads thus:
"Clause 25-A:- if question difference of
objections whatsoever shall arise in any
way connected with or arising out of
this instruments or the meaning or
operation of any part thereof, the
rights, duties or liabilities of other
party, then save in so far as the
decision of any such matter is herein
before provided and has been so decided
every such matter including whether it
has been finally decided accordingly, or
whether the contract should be
terminated or has been rightly
terminated and regards the rights and
obligations of the parties as the result
of such termination shall be referred
for arbitration to the Superintending
Engineer, Planning Circle, Chandigarh,
or acting as such at the time of
reference within 180 days viz., six
months from the date of making final
payment to the contractor......".
It is settled law that court cannot interpose and
interdict the appointment of an arbitrator, whom the parties
have chosen under the terms of the contract unless legal
misconduct of the arbitrator, fraud, disqualification etc.
is pleaded and proved. It is not in the power of the party
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at his own will or pleasure to revoke the authority of the
arbitrator appointed with his consent. There must be just
and sufficient cause for revocation. There is no general
power for the court to appoint an arbitrator unless the case
falls within the relevant provisions of the Act nor will the
court make an appointment where the arbitration agreement
provides a method by which appointment is to be made, Clause
25A expressly provides appointment of the named officer by
designation who was appointed in terms thereof and had
entered upon the duties immediately. Revocation of
arbitrator’s authority is exactly equivalent to removal
which would be done on specified grounds like misconduct or
omission to enter upon duties within time etc. Both parties
by consent may revoke the authority of the arbitrator but
that is not the case herein. The contract clearly indicates
that the Superintending Engineer, Planning Circle,
Chandigarh or any one acting as such at the time of
reference within 180 days, i.e. six months from the date of
making final payment of the contractor is the designated
officer chosen voluntarily by the parties. It was impugned
in the o.p. filed in the court of the Senior judge that the
officer had delayed for considerable period in making the
award and that, therefore, it necessitated the appellant to
invoke the jurisdiction of the civil court under the Act.
The High Court of Punjab and Haryana in the impugned
order in Civil Rev. No.516/91 has pointed out that the
contractor had consented for adjournments and that there was
no allegation of misconduct of the arbitrator in
adjudicating the dispute. On the other hand the High Court
recorded that:
".....the Arbitrator was proceeding with
the task of an arbitration in right
earnest, inspite of the fact that the
Contractor was not cooperating in this
behalf. On the transfer of Shri R.K.
Aggarwal, Superintending Engineer, the
work of arbitration had been taken up by
his successor Shri Puran Jeet Singh,
Superintending Engineer."
Thus it was held that the Arbitrator was willing to
proceed with and that the appellant was not cooperating in
conducting the proceedings. Therefore having consented for
adjournments and dragged on the case for a considerable
time, it is no longer open to contend that the arbitrator
neglected to make the award. Under those circumstances, it
cannot be said that there are any laches on the part of the
arbitrator in giving the award. When the parties, under the
clauses of the contract, have specifically chosen a named
authority and not any other arbitrator, without the consent
of the parties, court has no jurisdiction to interpose into
the contract and appoint an arbitrator under s.8 or any
other provision under the Act. The High Court, therefore,
was clearly right in setting aside the order of the Senior
Judge appointing an independent arbitrator to adjudicate the
dispute.
Since the matters are pending for a long time, the
arbitrator is directed to adjudicate upon the dispute and
give his award within six months from the date of the
receipt of this order. It is needless to mention that in
case the appellant does not cooperate in the disposal of the
application, the time limit prescribed by us would not deter
the arbitrator to decide the dispute according to law. The
appeal is accordingly dismissed. No costs.
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