Sh. Bhupinder
Singh Bindra Vs. Union of India & Anr [1995] INSC 344
(28 July 1995)
Ramaswamy,
K. Ramaswamy, K. Paripoornan, K.S.(J)
CITATION:
1995 AIR 2464 1995 SCC (5) 329 JT 1995 (6) 612 1995 SCALE (4)821
ACT:
HEAD NOTE:
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 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.
Back