Har Kishan Dass vs Bal Kishan Dass And Anr.
1993 Latest Caselaw 461 Del

JUDGMENT

Sat Pal, J.

(1) Since the point involved in both these applications is identical, these applications are being disposed of by this common order.

(2) These applications have been filed on behalf of Shri Suraj Prakash defendant No.2, and in these applications it has been prayed that the order regarding the appointment of Shri K.B. Andley, Advocate as arbitrator be revoked.

(3) Briefly stated, the facts of the case are that in the above suit Shri Bishan Lal Gupta was appointed as the arbitrator to decide the disputes between the parties vide order dated 18th October, 1989 passed by this Court. Thereafter, an application Ia 10728/90 was filed on behalf of the plaintiff wherein it was stated that there had been unreasonable delay in conducting the proceedings before the above mentioned Arbitrator and it was prayed that the authority of the said sole Arbitrator be revoked and a new Arbitrator in his place be appointed so that the matter in dispute between the parties pending since the year 1983 be disposed of within the prescribed time. During the pendency of this application vide order dated 7th July, 1992, the learned Counsel for the parties were directed to take appropriate instructions as to whether any other Arbitrator can be appointed by consent.

(4) Meanwhile, another application Ia 11021 /92 was filed on behalf of the plaintiff wherein it was stated that the said applicant vide letter dated 14th July, 1992 addressed to S/Shri Suraj Prakash and Pradeep Gupta '(defendants) had suggested the names of six independent and experienced Advocates and retired Judges for being appointed as one of the arbitrator in the said suit but no response had been given either by the defendants or by their Counsel. It was, therefore, prayed in this application that an Arbitrator be appointed by the Court.

(5) Notice of this application was issued to the non-applicants on 16th September, 1992, for 29th October, 1992 on which date at the request of the learned Counsel for the partics, the case was adjourned to 1st December, 1992. Since the members of Bar were stated to be on strike, the case was adjourned to 16th February, 1993. On 16th February, 1993 none appeared on behalf of defendant No.2, who is the applicant in these applications. However, at the request of the learned Counsel appearing for the parties on that date, the case was adjourned to 16th March, 1993 to suggest a name for appointment as an Arbitrator which was acceptable to the parties. On 16th March, 1993 again none appeared on .behalf of defendant No.2 and the Court was informed by the learned Counsel appearing for the parties on that date that they had reached a consensus for appointment of Mr. K.B. Andley, Advocate as an Arbitrator in the matter. The learned Counsel for the parties, however, submitted that they would ascertain from the arbitrator in this regard and the case was adjourned to 30th March, 1993. On 30th March, 1993 again none appeared on behalf of defendant No.2 and the learned Counsel for the parties on that date agreed to the appointment of Mr. K.B. Andley, Advocate as an Arbitrator in the matter in place of Mr. Bishan Lal Gupta. Mr. K.B. Andley, Advocate, who was present in the Court on that date stated that he was willing to accept his appointment as an Arbitrator and accordingly Mr. K.B. Andley, advocate was appointed as an Arbitrator. Accordingly, Ia Nos. 10278:90 and 11021/92 were disposed of on that dale.

(6) These applications have been filed on behalf of Shri Suraj Prakash, defendant No.2 and in these applications it has been prayed that the authority of Shri K.B. Andley, Advocate, as an Arbitrator be revoked. Mr. Dutta, the learned Counsel appearing on behalf of the said defendant reiterated submissions made in the application and contended that the appointment of Shri K.B. Andley, Advocate, as an Arbitrator was invalid and .contrary to the provisions of the Arbitration Act as the said appointment has been made without the consent of defendant No.2. He submitted that the earlier Arbitrator Shri Bishan Lal Gupta be summoned by the Court and it will be proved from his statement that he is in a position to adjudicate the disputes.

(7) Mr. Kohli, the learned Counsel appearing on behalf of the plaintiff, however, submitted that defendant No. 2 or his Counsel chose not to appear in Court on 16th February-,1993, 16th March, 1993 and 30th March, 1993 and it was in these circumstances that the appointment of Shri K.B. Andley, Advocate was made by this Court with the consent of the learned Counsel for the parties who were present on these dates. He, therefore, contended that the appoint of Shri K.B. Andley was legal.

(8) I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have also perused the records. On 7th July, 1992 the Court had directed the learned Counsel for the parties to take appropriate instructions as to whether any other arbitrator could be appointed by consent and on that date defendant No. 2 was duly represented by his counsel. On 29th October, 1992 the case was adjourned at the request of the learned Counsel for the parties and learned Counsel for defendant No. 2 was present on that date also. However, on 16th February, 1993, 16th March, 1993 and 30th March, 1993 none appeared on behalf of defendant No. 2 whereas learned Counsel appearing for the LRs of defendant No. 1 as well as the learned Counsel for the plaintiff were present and with their consent Shri K.B. Andley, Advocate was appointed as an arbitrator From these facts it is clear that learned Counsel for defendant No-2 did not appear on all these dates. Thus, the said defendant is deemed to have abdicated his right to give his consent to the appointment of the arbitrator by mutual consent. Defendant No.2 now cannot be allowed to raise the objection that Shri K.B. Andley, advocate has been appointed as an arbitrator without his consent.

(9) In view of the above discussions, I do not find any merit in these applications and the same are dismissed with no order as to costs.