Judgment 1 mca1194.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION (ARB.) NO. 1194 OF 2015
Shri Vinod S/o. Meghraj Massand,
Aged 63 years, Occu.: Business,
R/o. 44, Vinod Bhavan, Kadbi Chowk,
Nagpur.
ig .... APPLICANT.
// VERSUS //
1. Union of India,
Through Ministry of Railway
Represented by The General Manager,
Central Railways, Mumbai.
2. Union of India,
Represented by The Chief Administrative
Officer (C), Central Railways, 6th Floor,
New Administrative Office Building,
D.N.Road, Mumbai.
3. Union of India,
Through Ministry of Railway
Represented by The Dy. Chief Engineer(C),
Central Railways, Ajni, Nagpur.
.... NON-APPLICANTS
.
___________________________________________________________________
Shri A.R.Wagh, Advocate for Applicant.
Shri N.P.Lambat, Advocate for Non-applicants.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MAY 02, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
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2. RULE. Rule made returnable forthwith.
3. This is an application filed by the applicant under Section 11(6), 14(1)(a) and 15 of the Arbitration and Conciliation Act, 1996 praying that the mandate of the Arbitrator be terminated and independent and impartial Sole Arbitrator be appointed to resolve the dispute between the applicant and the non-applicants.
4. The applicant had filed Misc. Civil Application No. 760 of 2009 under Section 11 of the Arbitration and Conciliation Act, 1996 in which an order was passed on 2nd September, 2011 directing the non-applicants to appoint their nominee according to Clause No.64 and the applicant was permitted to chose his nominee from the list placed on record along with Pursis Stamp No.2682 of 2011. It was directed that thereafter the arbitration shall proceed according to law.
Pursuant to the above order passed by this Court the Arbitral Panel was appointed and proceedings started.
5. According to the applicant, the Arbitral Tribunal has caused inordinate delay in completing the arbitration proceedings and therefore, the applicant has approached this Court by the present application.
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6. Shri N.P. Lambat, learned advocate for the non-applicants has submitted that the application as filed by the applicant is not maintainable as the applicant will have to approach the District Court under Section 14 of the Arbitration and Conciliation Act, 1996 for seeking termination of the mandate of the Arbitral Tribunal. It is submitted that unless the mandate of the Arbitral Tribunal is terminated, this Court will not have jurisdiction to appoint Arbitrator.
7. Shri A.R. Wagh, learned advocate for the applicant has submitted that the arbitration proceedings are pending for about 5 years and the Arbitral Tribunal has not taken any positive steps to complete the arbitration proceedings. It is submitted that as per Clause 12(5) of the Arbitration and Conciliation Act, 1996 (as amended) the Arbitral Tribunal cannot continue with the arbitration proceedings and this Court will have to appoint an arbitrator to resolve the dispute between the parties. Referring to the provisions of Section 12 (5) and the Seventh Schedule of the Arbitration and Conciliation Act, 1996 (as amended), the learned advocate for the applicant has submitted that the members of the Arbitral Tribunal have incurred disqualification and therefore they cannot continue on Arbitral Tribunal. It is prayed that Sole Arbitrator may be appointed to resolve the dispute between the parties.
8. After considering the submissions made by the learned advocates for the respective parties, I find that the arguments made on behalf ::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 00:37:52 ::: Judgment 4 mca1194.15.odt of the applicant relying on the provisions of Section 12(5) and Seventh Schedule of the Arbitration and Conciliation Act, 1996, that the members of the Arbitral Tribunal cannot continue on the Arbitral Tribunal, cannot be accepted by this Court in these proceedings. The applicant will have to seek termination of the mandate of the Arbitral Tribunal before appropriate forum and this Court can exercise jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996 only if there is vacancy in the office of the Arbitrator. This Court, while considering the application under Section 11 of the Arbitration and Conciliation Act, 1996, cannot examine as to whether the members of the Arbitral Tribunal can continue on the Arbitral Tribunal or not. Therefore, I find that the present application cannot be entertained at this stage.
9. Hence, the following order :
i) The applicant is at liberty to file appropriate application under Section 14 of the Arbitration and Conciliation Act, 1996, before appropriate Forum.
ii) The applicant is at liberty to approach this Court under Section 11 of the Arbitration and Conciliation Act, 1996 at appropriate stage if the office of the Arbitral Tribunal/ Arbitrator is vacant.
The application is disposed of in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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