Delhi High Court
Sab Industries Ltd. vs Govt. Of Nct Of Delhi And Ors. on 12 December, 2002
Equivalent citations: 2003 (2) ARBLR 523 Delhi, 2003 (66) DRJ 543
Author: J Kapoor
Bench: J Kapoor
JUDGMENT
J.D. Kapoor, J.
1. This is a petition for appointment of an Arbitrator preferably a Retd. High Court Judge as in the past as many as three Arbitrators have resigned and after resignation of second Arbitrator, the respondents did not appoint fresh Arbitrator within the prescribed period of 30 days and a new Arbitrator was appointed after two months and the said Arbitrator has also resigned. Now the respondents have appointed one Mr. A.K. Singhal as a new Arbitrator.
2. The main grievance of the petitioner is that in spite of directions of this court vide order dated 26.9.1995 in the face of the allegations of the respondents that petitioner's claim is based upon forged documents and the CBI is seized of the matter that the proceedings before the Arbitrator should continue, the last Arbitrator adjourned the proceedings sine die vide order dated 10.8.2000 and since then the proceedings are lying dormant.
3. However, on 10.12.2002, the new Arbitrator Mr. A.K. Singhal fixed the proceedings for 16.1.2003 at 11 A.M. for filing counter statement of facts by respondents with regard to additional 23 claims referred by the Chief Engineer. However, on 10.12.2002, the petitioner/claimant was not present before the said new Arbitrator.
4. Having suffered the resignation of as many as three Arbitrators as a result of which proceedings came to grinding halt, it would be in the interest of justice to appoint a Retd. High Court Judge as an Arbitrator particularly in view of the failure of the respondents to appoint an Arbitrator after the resignation of last Arbitrator within the prescribed period of 30 days as this lapse on the part of respondents resulted in forfeiture of its right to appoint a new Arbitrator. And that too after the filing of instant petition seeking appointment of the Arbitrator.
5. The Supreme Court has taken a view in G. Ramachandra Reddy and Co. V. Chief Engineer, Madras Zone, Military Engineering Service (SIC) 5 SCC 142 that when the notice was given to the opposite contracting party to appoint an arbitrator in terms of the contract and if no action had been taken, it must be deemed that he neglected to act upon the contract. When no agreement was reached, even in the court between the parties, the court gets jurisdiction and power to appoint an arbitrator. Even if Section 8(a) per se does not apply, notice was an intimation to the opposite contracting party to act upon the terms of the contract and his/its non-availment entail the forfeiture of the power to appoint an arbitrator in terms of the contract and gives right to the other party to invoke the court's jurisdiction under Section 20.
6. It is unfortunate that in spite of directions of this court, proceedings have not made any substantive progress as six years have passed and still the proceedings are at the stage of counter-statement of facts by the respondents.
7. Taking overall view of the matter, I feel inclined to allow the petition. Same is allowed. Mr. Justice N.C. Kochhar, a retired Judge of the High Court is appointed as sole Arbitrator. It is expected that the learned Arbitrator shall expeditiously dispose of arbitration proceedings and the order of staying the proceedings sine die will not come in his way in view of the directions given by this Court vide order dated 26.9.1995. The learned Arbitrator shall fix his own fee. Petition is disposed in the aforesaid terms.
