M/S.National
Heavy Engineering Cooperative Ltd. Vs. M/S. King Builders [2000] INSC 616 (4
December 2000)
D.P.Mohapatro,
Shivaraj Patil
L.I.T.J
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 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.
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