THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Arbitration Application No.68 of 2010 29th June, 2011 Between :- T.Venkata Reddy .. Applicant And The Union of India, Rep.by its General Manager, South West Railways, Hubli .. Respondent THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Arbitration Application No.68 of 2010 ORDER:- This application has been taken out under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996 read with Scheme for Appointment of Arbitrators, 1996, seeking appointment of an Arbitrator to adjudicate the dispute/claim pursuant to the contract under agreements bearing No.183/SBC/91, dated 10-8-1991 and No.184/SBC/91, dated 10-9-1991. The applicant is a Railway Contractor. Two works have been entrusted to him by the respondent under two agreements bearing No.183/SBC/91, dated 10-8-1991 and No.184/SBC/91, dated 10-9- 1991. One work relates to making up cess with Railway earth etc., and another work is in respect of widening of cutting between KM.124/10 and 175/0 in P.W.1/PKDSection. Certain disputes cropped up between the parties in respect of the two works. The applicant made a request to the respondent for referring the disputes to the Arbitrator. The respondent constituted an Arbitral Tribunal. The Arbitral Tribunal constituted by the respondent passed an Award on 9-8-2002. Award came to be challenged before the District Judge, Anantapur, by filing O.P.No.52 of 2003 under Section 34 of the Arbitration and Conciliation Act, 1996. The learned District Judge on hearing the Counsel appearing for the parties, proceeded to remand the matter back to the Arbitral Tribunal for reconsideration of the case. For better appreciation, I may refer paras 6 and 7 of the order passed by the learned District Judge, Anantapur, in O.P.No.52 of 2003, which reads as hereunder:- “On perusal of the Award passed by the Arbitrator, one thing is certain that the submissions of the petitioner are not fully considered. There is no any tangible evidence on record to show that the Arbitration Award was passed by considering the entire case of the petitioner. The petitioner was absent at the time of pronouncement of the Award and also at the time of enquiry before the Arbitrator. Therefore, this Court is of the view that the Award which has been pronounced between the parties is not intact though it be deemed to have dealt with the dispute between the parties and the reference was made in the Award without full consideration of the case of the petitioner. The provisions of CPC in deciding the case are applicable to the Arbitration proceedings also, the present Award in question shall not have been any finality because, the case of the petitioner was not fully considered by the Arbitration Tribunal. In the reference itself, the Arbitrator has noted that the petitioner was absent at the time of final pronouncement of the Award. This aspect is in dispute and the petitioner has seriously disputed and his dispute is only with regard to the return of security deposit as mentioned in the petition and other claims with interest and loss. Therefore, at this stage, there is no any need and there is no any pointing nature of this Court to hold that the Award passed by the Arbitrator is not fully correct and it is biased one, and on the other hand, one this is certain that the Award passed by the Arbitrator and the final order and the same was pronounced in the absence of the petitioner. Therefore, the case of the petitioner is to be reconsidered again and it is the outlook of the Arbitrator. The interference of this Court on the findings and Award of the Arbitrator is only with regard to the opportunity must be given to the petitioner to hear the case once again. That view, if taken, as it is the proper recourse and it is the possible view to pass final orders for the limited purpose of the claim of the petitioner as claimed by the petitioner as mentioned in the petition. This Court as a matter of fact cannot substitute its own valuation and come to a conclusion that the Arbitrator had acted contrary to the bargain between the parties. In view of the present case facts and circumstances, my sincere view is that a reasonable opportunity must be given to the petitioner to pass Award. Therefore, in view of the present case facts and circumstances, I am of the considered view that this petition is deserves to be allowed. In the result, the petition is allowed and the matter is remitted back to the learned Arbitral Tribunal for reconsideration of the case of the petitioner with the limited purpose, consisting of the clauses 3 to 5 in agreement Nos. 183/SBC/91, and No.184/SBC/91, dated 10-9-1991, and to decide all the claims 1 to 11 and 1 to 9 of the petition, by giving an opportunity to the petitioner to put forth his submissions. No order as to costs in the circumstances of this petition.” On remand of the matter to the Arbitral Tribunal, the applicant approached this Court seeking appointment of sole Arbitrator to adjudicate upon the disputes/claims in place of Arbitral Tribunal constituted by the respondent. It is the plea of the applicant that he has no confidence in the composition of the Arbitrators and therefore he apprehends that his claim may not be adjudicated fairly and properly. Notice to the respondent came to be ordered on 29-4-2010. The respondent entered appearance and filed counter. It is stated in the counter that Arbitral Tribunal has been constituted as per the Judgment and Decree dated 28-03-2008 in O.P.No.52/2003 and in accordance with the agreed procedure under the general terms and conditions of the contract. Heard learned Counsel appearing for the applicant and learned standing Counsel appearing for the respondent. Learned Counsel appearing for the applicant submits that the applicant has no confidence in the Arbitral Tribunal and therefore he seeks appointment of sole Arbitrator for adjudication of the disputes/claims that have arisen out of the two agreements No.183/SBC/91, dated 10-8-1991 and No.184/SBC/91, dated 10-9- 1991. Learned standing Counsel appearing for the respondent submits that the applicant has not made out any valid ground for entertaining apprehension that the Arbitrators who constituted the Arbitral Tribunal have bias on his claim. A further submission has been made that if the applicant has any grievance with regard to the composition of the Arbitral Tribunal, he can as well raise his objections under sub-section (2)of Section 13 before the Arbitral Tribunal. As per the general terms and conditions of the contract, it is the Department personnel who have to act as Arbitrators. Indeed, the respondent considered the request of the applicant and constituted a Arbitral Tribunal by appointing Departmental people as Arbitrators. The applicant except stating that he has no confidence in the present composition of the Arbitrators, no valid reasons have been assigned for entertaining such apprehension. Therefore the application is devoid of merits and accordingly the same is dismissed. If the applicant has any grievance with regard to the composition of the Arbitral Tribunal, he is at liberty to raise the same under sub-section (2) of Section 13 of the Arbitration and Conciliation Act, 1996. Subject to the above observation, the application is dismissed. No order as to costs. ________________________ B.Seshasayana Reddy, J 29th June, 2011 smr