Shri Vinod S/O Meghraj Massand vs The Union Of India Through ...
2016 Latest Caselaw 2133 Bom

     Judgment                                              1                               mca1192.15.odt




                                                                                       
                      
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   NAGPUR BENCH, NAGPUR.




                                                               
                   MISC. CIVIL APPLICATION (ARB.) NO. 1192  OF 2015




                                                              
     Shri Vinod S/o. Meghraj Massand,
     Aged 62 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, C.S.T., Mumbai.
      


     2. Union of India,
   



        Through Ministry of Railway 
        Represented by The Chief Engineer,
        Central Railways, C.S.T., Mumbai.

     3. Union of India,





        Through Ministry of Railway 
        Represented by The Sr. DEN (Co-
        Ordination) Central Railways, 
        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.

Judgment 2 mca1192.15.odt

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. 532 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.

Judgment 3 mca1192.15.odt

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

Judgment 4 mca1192.15.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..