Lloyd Insulations (India) Pvt. ... vs Cement Corporation Of India Ltd. ...
1994 Latest Caselaw 553 Del

JUDGMENT

R.L. Gupta, J.

(1) This petition has been moved under Section 28 'of the Arbitration Act read with Section 41 and Order 39 Rules,l,2 and 3 and/or principles thereof and under Section 151 Code of Civil Procedure with the prayer that time for making the award by respondent No.2 may be extended and/or enlarged by further period of four months from the date of the order and letter dated 18th June,1991 issued by respondent No.1 may be quashed.

(2) The facts in brief are that in respect of work granted in 1984 to the petitioner by the first respondent, petitioner raised certain disputes in 1990 whereupon the Chairman of the first respondent appointed Sh.B.K.Madan, respondent No.2 as an Arbitrator to settle those disputes. I his was vide order dated 9th March,1990. The arbitrator entered upon reference. It appears that the petitioner had also filed an application before the learned Addl.District Judge, Delhi under Section 20 of the Arbitration Act for reference of the disputes to the arbitrator. But in view of the fact that the arbitrator had been appointed on 9th March,1990 by the Chairman of the first respondent, the petition having become infructuous was dismissed by learned Adj vide order dated 29th March,1990. A copy of that order is placed on record by the respondent itself along with its reply.

(3) It appears that arbitration proceedings were going on before the arbitrator and parties themselves were extending time before the arbitrator for publishing the award. It is also not disputed that on 26th December, 1990 the time was mutually extended up to 31st March,1991. The respondent sought adjournments for arguments after leading evidence which were granted on 21st March,1991 and 27th March,1991. Still another adjournment was sought and matter was adjourned to 17th June, 1991. Or that date, it appears that none appeared before the Arbitrator on behalf of respondent No.1 and rather by a letter dated 18th June,1991, Annexure P-5 along with the petition, a telegram was sent to the Arbitrator that his name had been withdrawn as an Arbitrator. Aggrieved against that letter, present petition was filed. 88

(4) This petition has been contested on behalf of the respondent. I have heard arguments advanced by learned counsel for the parties. There are two main contentions raised on behalf of the respondent. The first is that the arbitrator had retired from the services of the respondent on 31st January,1991 and, therefore, he having no longer remained an officer of the first respondent could not have continued the arbitration proceedings and, therefore, the arbitration proceedings should be deemed to have come to an end before him which necessitated appointment of another arbitrator and it was only in that context that authority to act was withdrawn by means of a letter Annexure P5. Learned counsel for the petitioner, however, contends that this submission of the learned counsel for the respondent was not well founded, for the reason that the arbitrator was allowed to continue with the proceedings even after the date of retirement which is apparent from the dates before the Arbitrator in March,1991. The contention of the learned counsel for the petitioner seems to be right. Even otherwise it appears to be against common sense that an officer who was appointed as an Arbitrator while he was in service, should certainly cease to be so on his retirement. I think for the purpose of any reference made to him as an arbitrator, he should be deemed to have continued as an officer of the Corporation. Even otherwise, an arbitrator is deemed to be an independent person and his retirement has no relevance for his continuation as an arbitrator. The contention in that respect is not well founded.

(5) The other contention raised by learned counsel for the respondent is that since a petition under Section 20 was pending before the learned Adj, therefore, the appointment of the arbitrator by the Chairman of the first respondent should be deemed' to be an appointment by the court of learned Adj and, therefore, this court had no jurisdiction in this matter. Again this contention seems to have no force for the simple reason that it was neither by the order of the learned Adj that the arbitrator was appointed in this case nor any reference was made by the court to the arbitrator. The very fact that it is recorded in the order of the learned Adj that the petition had become infructuous because an arbitrator had already been appointed by the Chairman of the first respondent, would go to show that appointment of the arbitrator was not by court of Adj and so the jurisdiction of this Court is not ousted. Both these contentions, therefore, seem to have no force.

(6) There is no doubt that the arbitrator has taken quite a long time for deciding the disputes between the parties but in view of the fact that time was being extended by arbitrator mutually at the request of both the par- 89 ties, no harm will come if one more final extension is granted to the arbitrator to publish the award. Therefore, this petition is allowed and the arbitrator is granted a period of four months from today to publish the award. The letter dated 18th June,1991 issued by the Corporation as well the appointment of another Arbitrator by the first respondent vide letter dated 17/18th July,1991 are hereby quashed. The interim orders passed earlier are made absolute. Parties are directed to now appear before the arbitrator, respondent No.2 on 8th September,1994 at 11.00 A.M. A copy of this order be forwarded immediately to the arbitrator.