M/S Harvinder Singh & Co. vs Nbcc Ltd. & Ors.
2009 Latest Caselaw 2103 Del

             * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                 Date of Reserve: 24.4.2009
                                                               Date of Order: 18th May, 2009

OMP No. 461/2007
%                                                                              18.5.2009

        M/s Harvinder Singh & Co.                ... Petitioner
                       Through: Mr. Sandeep Sharma, Advocate

                   Versus


        National Building Construction Corporation Ltd.
        & Ors.                                     ... Respondents
                        Through: Mr. Manoj Kumar Das, Advocate


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the
judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

By this petition under Section 14 of the Arbitration & Conciliation

Act, 1996, the petitioner has prayed for terminating the mandate of Mr. Amitabha

Basu, respondent no.2 (Arbitrator), and appoint an independent Arbitrator in his

place for conducting the arbitration proceedings and give award.

2. The contention of the petitioner is that to adjudicate the dispute

raised by the petitioner, the appointing authority vide letter dated 26.12.2002

appointed Shri A.K.Gupta, Dy. General Manager of respondent no.1 as sole

Arbitrator. From 2002 till 2005 Mr. A.K.Gupta did just nothing except giving

adjournments and the petitioner was compelled to move an application under

Section 14 of the Act before this Court being OMP No. 293/2005 seeking

removal of the Arbitrator. This Court vide order dated 22.1.2007 observed that

since the proceedings at that time were pending before Shri A.Basu ED

(Technical), a new Arbitrator, it would not be appropriate to interfere with the

proceedings and this Court issued directions to the Sole Arbitrator to act with

dispatch and to conclude the arbitration proceedings not later than 08 months

from the date of the order. It is stated that Mr. A.Basu did not continue

proceedings in the spirit of the orders. The petitioner vide letter dated 8.2.2007

requested Mr. A.Basu to commence the proceedings in view of deadline set by

this Court. Mr. A.Basu fixed date of hearing as 26.2.2007 and on that day

recorded that since complete record had not been received from the earlier

Arbitrator so schedule of hearing would be fixed after receipt of record. Both the

parties, however, were directed to submit authority letter in favour of their

presenting officials and their counsel latest by 15.3.2007. The requisite authority

letter was submitted by the petitioner on 6.3.2007 however, no hearing was fixed

by the respondent despite submitting authority letter by the counsel. The

petitioner again requested the respondent vide letter dated 1.5.2007 to conduct

early hearing but with no effect. Thereafter, the learned Arbitrator wrote a letter

to petitioner (received by petitioner on 11.8.2007) telling the petitioner to file

written notes of arguments on or before 27.8.2007 to enable the Arbitrator to

pass an award within 08 months. The petitioner submitted that such an

attitude/conduct of respondent was totally illegal and against the principles of

natural justice. The learned Arbitrator wanted to directly pass award without

conducting any other proceeding. The claim of the petitioner was of Rs.1.7 crore

and the respondent was sitting prettily on the matter with the petitioner looking

helpless. It is stated that the mandate of the Arbitrator who had not complied

with the orders of the Court and had not proceeded with the arbitration should be

terminated and an independent Arbitrator should be appointed.

3. It is apparent from the record that the arbitration proceedings were

initiated by the petitioner in 2002, we are 7 years hence after an initiation of the

arbitration proceedings. The sole aim of the arbitration is that parties get quick

settlement of their commercial disputes and the very purpose of the arbitration

stands defeated with this attitude of the Arbitrator. The earlier Arbitrator just kept

on giving adjournments and the second Arbitrator did not fix the case on the

ground that the record was not received from the earlier Arbitrator and then

asked the parties to file written synopsis/arguments without even conducting

proceedings. Both the Arbitrators belonged to the same department and if the

second arbitrator wanted to call for record from the first Arbitrator it would not

have taken days, or weeks and the Arbitrator just by making a telephone call or

sending any messenger would have got the arbitration record. If he was still

facing any difficulty in procurement of arbitration record, he should have informed

the party for making an arbitration application before the Court summoning the

arbitration record from the earlier Arbitrator in view of the attitude of the

Arbitrator. It is apparent that the Arbitrator in this case had not acted in

accordance with the law and in accordance with spirit of the order. The order did

not require the Arbitrator to announce the award without proceedings. There is

no reason for the Arbitrator to ask the claimant directly to file written arguments

without having led evidence by giving up his right to lead evidence.

4. Under Section 14 of the Arbitration & Conciliation Act, the Court

has power to terminate the mandate of the Arbitrator, if the Arbitrator fails to act

without undue delay for any reasons. Keeping in view, the manner in which the

two departmental Arbitrators have proceeded in this case one after another, the

matter has not been adjudicated despite passing of around 7 years. I consider

that it is a fit case where the mandate of the present Arbitrator should be

terminated and the Court should appoint another independent Arbitrator. I,

therefore appoint Mr. D.S.Pawaria, retired ADJ (Mobile No. 9810433390) as

Arbitrator in this case. He shall fix his fees in consultation with parties. Parties

shall appear before Mr. D.S.Pawaria on 4th June, 2009. Mr. A.Basu and Mr.

A.K.Gupta, Arbitrators are directed to send all arbitration record available with

them to Mr. D.S.Pawaria before that day. The respondent in this case shall also

see to it that the arbitration record reaches the new Arbitrator before the date

fixed. The Arbitrator shall endeavour to pass the award within a period of four

months from the date of first appearance of the parties.

A copy of this order be sent to Mr. D.S.Pawaria, retired ADJ.

May 18, 2009                                              SHIV NARAYAN DHINGRA, J.
vn