Ess Kay Kohli vs Municipal Corporation Of Delhi ...
1995 Latest Caselaw 224 Del

JUDGMENT

Jaspal Singh, J.

(1) The petition is under sections 5, 8, 11 and 12 of the Arbitration Act. The petitioner seeks the removal of Mr.B.K.Sharma who was appointed on August 10, 1992 as the sole Arbitrator by the Commissioner, Municipal Corporation of Delhi, arrayed as respondent No.1. The petition seems to be full of allegations against the conduct of the sole Arbitrator. However, during arguments his removal was sought only on the ground that the disputes being of technical nature requiring engineering skill and the sole Arbitrator being not so qualified, he ought to be removed. In support my attention was drawn to a judgment of a learned single judge of the Jammu and Kashmir High Court reported as Mohinder Singh & Co. v. Union of India Air 1972 J&K 63.

(2) In Mohinder Singh's case (supra) also the dispute related to matters technical in nature which could be solved and understood by qualified engineers. The Arbitrator was not an engineer. The learned single judge relying upon two judgments namely Union of India v. New India Constructors, Delhi and Union of India v. D.P.Singh , removed the Arbitrator.

(3) Before I proceed further let me briefly deal with the said judgments from Punjab and Patna High Courts.

(4) In Union of India v. New India Constructors Delhi Chief Engineer having failed to appoint an Arbitrator as per the terms of the agreement, the court, on an application appointed an Advocate as the sole Arbitrator. The Union of India feeling aggrieved by that order preferred an appeal in which it was held that even if the court had the right to make an appointment, it did not exercise its discretion wisely in appointing an Advocate as sole Arbitrator who can know nothing of the technical working of the Public Works Department.

(5) In Union of India v. D.P.Singh , also the Authority had failed to appoint an Arbitrator despite notice and as a result a petition had to be filed under section 8 of the Arbitration Act for appointment of an Arbitrator by the Court. It was consequent upon that application that a pleader was appointed as an Arbitrator. Aggrieved by that order a revision petition was filed in the High Court. The Patna High Court relying upon the judgment from Punjab referred to above, held that since the dispute involved technical matters the court below made an improper use of the discretion in appointing a pleader as the Arbitrator.

(6) In the case before me, the Arbitrator has not been appointed by a court. He has been appointed in terms of the arbitration agreement. During arguments it was submitted that Mr.Sharma is acting as an Arbitrator in many such like cases and that for sufficiently long time he had worked in the Department. He is thus not a raw hand. In any case, what further distinguishes this case from the matters before the Punjab and the Patna High Courts is that the petitioner had joined the proceedings and had been regularly participating in the arbitration proceedings without any protest. Though in the petition certain allegations have been made against the conduct of the Arbitrator, as already noticed above, his removal was sought during arguments only on the ground that he was not a qualified engineer. This distinguishes the present case from the case before the Jammu and Kashmir High Court.

(7) It need hardly be mentioned that before the Court exercises its discretion to revoke the authority of an Arbitrator, it must be satisfied that a substantial miscarriage of justice will take place in the event of its removal. It is not a case where the Arbitrator can be said to be guilty of any act which may possibly be construed as indicative of partiality or unfairness. In any case, there are no such exceptional circumstances in this case as would justify this court to come to the conclusion that the Arbitrator had displayed any bias. True, he is not a qualified engineer but then he is not totally raw. In any case, the petitioner was well aware of the nature of the dispute. It was also no less aware of the Arbitrator not being a qualified engineer. And yet, the petitioner not only accepted his appointment without protest but rather continued actively participating in the proceedings conducted by him. I feel that the petitioner cannot be heard to say now that the Arbitrator should be removed merely because he is not a qualified engineer. By agreeing to his appointment and by participating in the proceedings without protest, without demur, the petitioner rather persuaded the respondent also to proceed with the arbitration proceedings. It is too late in the day now to seek revocation of his authority on this sole ground alone.

(8) The petition is dismissed but with no order as to costs.