Vimlesh Bansal Wife Of Prem ... vs Ashok Kumar Son Of Shri Baij Nath
2022 Latest Caselaw 4122 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Arbitration Application No. 51/2020

1.     Vimlesh Bansal Wife Of Prem Prakash Bansal, Resident Of
       New Sabji Mandi, Station Road, Bayana (Bharatpur).
2.     Smt.    Shakuntala       Wife      Of    Chandra         Prakash   Bansal,
       Resident Of Near SBBJ, Arya Samaj Road, Bayana
       (Bharatpur)
3.     Anand Kumar Singhal Son Of Late Shri Chandra Pal,
       Resident Of Station Road, Bayana (Bharatpur)
                                                                  ----Petitioners
                                   Versus
Ashok Kumar Son Of Shri Baij Nath, R/o New Colony Warehouse
Road, Bayana, District Bharatpur.
                                                                 ----Respondent

For Petitioner(s)        :     Mr. Jatin Agarwal
For Respondent(s)        :     Mr. Abhi Goyal



          HON'BLE MR. JUSTICE PANKAJ BHANDARI

                                    Order

ORDER RESERVED ON                         ::                       19/05/2022
ORDER PRONOUNCED ON                       ::                       26/05/2022

1. The applicants have filed this arbitration application under

Section 11(5) read with Section 11(6) and Sections 14 and 15 of

the Arbitration and Conciliation Act, 1996 (hereinafter referred to

as "the Act") for appointment of a sole arbitrator for settlement of

differences and disputes between the parties.

2. It is mentioned in the arbitration application that earlier an

application under Section 11 of the Act was filed before the High

Court, which was registered as S.B. Arbitration Application

No.88/2011: Vimlesh Bansal & Ors. Versus Ashok Kumar. The said

application was allowed by the High Court vide its order dated

(2 of 6) [ARBAP-51/2020]

23.09.2016, wherein the High Court was pleased to appoint Mr.

Brij Mohan Gupta, Retired District Judge as a sole arbitrator. It is

also mentioned in the application that no notice was received from

the sole arbitrator and only in 2018, the applicants received a

copy of the order-sheet from the arbitrator wherein it was stated

that even after the service of the notice, no one turned up in the

proceedings and accordingly, the proceedings were closed on

29.11.2016.

3. In reply to the above application, it is contended by the

respondent that a second application is not maintainable. It is also

mentioned that the applicants have an alternative and efficacious

remedy by either filing a regular application for setting aside the

award and cannot be allowed to invoke the powers of this Court. It

is further mentioned in the reply that the dispute is barred by

limitation as the alleged dispute relates back to the year 2009 and

the present application has been filed in the year 2020. It is

mentioned that after dismissal of the claim on 29.11.2016, the

present application has been filed after a lapse of 4 years and

since Article 137 of the Limitation Act is applicable, the limitation

being 3 years, the said application is barred by limitation.

4. A rejoinder has also been filed by the applicants denying that

the application is not maintainable being barred by res-judicata. It

is stated in the application that the proceedings were terminated

since none of the parties appeared before the sole arbitrator and

the proceedings were terminated in view of Section 32(2)(c) and

sub-clause (3) of Section 32 of the Act. It is contended that on

termination of the mandate of an arbitrator, a substituted

arbitrator can be appointed. It is also stated in the rejoinder that

with the closure and termination of the arbitration proceedings by

(3 of 6) [ARBAP-51/2020]

the sole arbitrator on 29.11.2016 effectively also terminated the

mandate of Arbitral Tribunal in view of Section 32(3) of the Act.

Thus, substituted arbitrator in view of the provisions of the Act

could only be appointed in terms of the procedure for which the

earlier sole arbitrator was appointed as per Section 15(2) of the

Act.

5. Counsel for the applicants has placed reliance on Uttarkhand

Purv Sainik Kalyan Nigam Ltd. Versus Northern Coal Field Ltd.:

(2020) 2 SCC 455 wherein it was held that the High Court erred

in dismissing application for appointment of arbitrator on ground

that claim was barred by limitation. Such preliminary objection

was to be decided by arbitrator, once Court had determined

existence of arbitration agreement, after which it was bound to

appoint arbitrator once the same was found to exist. Counsel for

the non-applicant has placed reliance on Bharat Sanchar Nigam

Limited & Anr. Versus Nortel Networks Indian Private Limited:

(2021) 5 SCC 738 wherein it was held that Article 137 of the

Limitation Act would apply in cases wherein application is filed

under Section 11(6) of the Act and that the limitation period would

be 3 years.

6. I have considered the contentions and carefully perused the

material available on record.

7. Admittedly, the applicants earlier approached the High Court

by way of filing an arbitration application and the same was

allowed by the High Court vide order dated 23.09.2016 and an

arbitrator was appointed. The arbitrator issued notices to the

parties and it is evident from the order-sheet of the sole arbitrator

that none of the parties appeared before the arbitrator and

therefore, the arbitrator terminated the arbitration proceedings.

(4 of 6) [ARBAP-51/2020]

The applicants did not agitate the termination of the proceedings

and have approached the Court again on 06.07.2020 by filing the

present arbitration application. The earlier proceedings terminated

on 29.11.2016 and the present application has been filed on

06.07.2020 i.e. after a lapse of 3 years and around 7 months. The

applicants never approached the arbitrator and proceedings

terminated as no claim was filed by them before the arbitrator. As

per the rejoinder filed by the applicants themselves, the

proceedings were terminated in view of Section 32(2)(c) of the

Act.

8. A bare perusal of Section 32(2)(c) of the Act makes it clear

that the arbitral proceedings shall be terminated by an order of

the arbitral tribunal under sub-section (2) where the arbitral

tribunal finds that continuation of proceedings has for any reason

become unnecessary or impossible. The recourse available to the

parties in such a case is to apply to the 'Court' as is envisaged

under Section 14(2) of the Act. Section 14(1)(a) & (2) are

reproduced herein below:-

"(1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if]--

(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and

(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate".

Further, the term 'Court' as mentioned in Section 14 (2) of

the Act is defined in Section 2(e) to mean principal Civil Court of

(5 of 6) [ARBAP-51/2020]

original jurisdiction in a district or the High Court, in exercise of its

ordinary original civil jurisdiction.

9. The legal maxim 'Vigilantibus Non Dormientibus Jura

Subveniunt' literally translates to 'the law assists only those who

are vigilant and not those who sleep over their rights'. The said

legal maxim applies squarely to the present case where applicants

did not take recourse of law available to them when the arbitrator

terminated the proceedings on 29.11.2016 and have now

preferred a second application under Section 11(5) of the Act, that

too with inordinate delay and laches. Thus, this Court is of the

considered view that once an application under Section 11(5) of

the Act is allowed by the High Court and an arbitrator is

appointed, a second application for appointment of the arbitrator

does not lie, more particularly when the arbitrator has terminated

the proceedings and the proper course available to the applicants

was to file an application under Section 14(2) of the Act to

challenge the order on the ground that they were not given proper

notice.

10. The present application has been filed after 3 years and more

than 7 months of the termination of the mandate of the arbitrator,

which is clearly barred by limitation in view of the judgment of the

Apex Court in Bharat Sanchar Nigam Limited & Anr. (supra). The

judgment in Uttarkhand Purv Sainik Kalyan Nigam Ltd. (supra)

has no applicability to the facts of this case as in the present case,

there is a second application under Section 11(5) of the Act and

the first application was allowed. The proceedings of the arbitrator

was terminated and after a lapse of more than 3 years and 7

months, the present application has again been filed for

(6 of 6) [ARBAP-51/2020]

appointment of an arbitrator. The present arbitration application

therefore, deserves to be and the same is accordingly dismissed.

(PANKAJ BHANDARI),J

SUNIL SOLANKI /PS

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