CRP/7/2004 of Union of India and Ors Vs T. R. Oberoi on 23 November 2004

ORDER

R.K. PA". C.I.

'mis revision arises out of a proceeding initiatedby the opposite party under sections 5, 8, 11 and 12 of theArbitration Act, 1940 in the Court of District Judge (E & N),Siklin at Gangtok vide T.S. (Arbitration) no. 2 of 2004. Bythe inpugned order dated 31.5.2004, the leaned DistrictJudge held that a case for appointment Of an independentarbitrator has been made out and accordingly directed theparties to submit a panel of names. Being aggrieved ty thesaid order, the department has filed this revision.

2. For the work of "constmction of school buildingof Kendriya Vidyalaya at Gangtok" an agreement wasexecuted between the petitioners and the opposite party videagreement no.CESZ/ 136-WE/ 12 of 85-86. During executionof the work, certain disputes and differences between theparties arose. The opposite party accordingiv ffled CivilMiscellaneous Case (arbitration) no.8 of 1994 in the Court ofDistrict Judge for appointment of an arbitrator to decide 17number of claims. During the pendency of the said case, thepetitioners althouch appointed Brig. T. K. Mittal as the solearbitrator it did not refer to him all the claims raised by theopposite party. The arbitrator also did not render his award within reasonable time. In the circumstances, the oppositeparty ffled another case bearing suit no.16 of 1999 forappointment of another arbitrator. The leaned DistrictJudge by order dated 27.9.1999 called upon the petitionersto appoint an arbitrator and in obedience to the said order,the petitioners appointed one M. K. Chitkara, Chief Engineeras arbitrator. The appointing authority however out of 17clains laid by the opposite party referred only 10 clains tobin. The opposite party appeared before the arbitrator andsubmitted that all his clains have not referred to. The saidarbitrator however resigned. The department as aconsequence appointed one Namo Narain as the arbitrator inits letter dated 3.1.2001. The appointing authority againinstead of referring all the disputes raised by the oppositeparty referred to the new arbitrator only 10 items. Theopposite party requested the arbitrator to consider all hisclaims. At this time, the arbitrator informed the oppositeparty that he would hold the arbitration proceedings atCalcutta not at Gangtok or at Siliguri on health ground. Hehowever, did not proceed in the matter. Finding no otheralternative, the opposite party filed the present case forappointment of an independent arbitrator. During thependeney of the case, the department appointed one 8. N.Roy as arbitrator on 14.10.2003. He however resigned onbeing informed by the counsel for the opposite party to the effect that his appointment was during the pendency of theCase.

3. Considering the manner in which the matter hadbeen proceeding the learned District Judge by the impugnedorder has observed that an independent arbitrator should beappointed for resolution of the disputes.

4. There is no dispute that a vacancy has arisenLIand an arbitrator has to be appointed. Irearned counsel forthe petitioners submitted that in view of the arbitrationclause no arbitrator outside the purview of the arbitrationclause can be appointed and discretion should be given tothe department to appoint an arbitrator in terns of thearbitration clause.

5. 'The question that arises for consideration iswhether the leaned District Judge has exercised properdiscretion in deciding to appoint an independent arbitrator.

6. The facts narrated above speak for themselves.Althouch the department appointed four arbitrators none ofthem made any progress. The arbitration proceedings arerequired to be disposed of with utmost dispatch andurgency. The conduct of the departmental arbitrators wasnot encouraging. Therefore in the interest of justice and inthe facts and circumstances of the case an independentarbitrator should be appointed. I therefore do not find anyflaw in the impugried order.

Counsel for the petitioners declined to submit alist of persons for consideration on the plea that it is onlythe desigriated authority has jurisdiction to appoint anarbitrator. The opposite party has submitted a panel ofretired District Judges for being considered for appointmentas arbitrator.

8. For the reasons aforesaid, I hereby choose ShriI,~8. R. Pradhan, fomer District Judge and Secretary, Law,Nan Nang, Gangtok out of the panel of names submitted bythe opposite party and appoint him as arbitrator to decideall the disputes put forth by the opposite party. Thepetitioners are hereby directed to refer all the disputes raised -by the opposite party to him for the decision. The arbitratorshall conclude the proceedings as expeditiously as possibleand give the award within four months after entering on thereference. He is entitled to his fees and charges which heshall reasonably fix. Both 'the parties shall share theremuneration equally.

9. With the above observations and directions, thisrevision is disposed of. No costs.

R.K.#/Chkeif Jdsticeae.11.2ou

Dictation taken&typed by meDipak Saha