1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. MISC.CIVIL APPLICATION (Arbitration) Nos.532/09, 600/08 & 760/09 Vinod Meghraj Massand -VERSUS- The Union of India and others. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI, J. DATED : 02.09.2011. Heard Shri A.S. Jaiswal, learned Counsel for the applicants and Shri N.P. Lambat, learned Counsel for respondents. The respective counsel are being heard since long. Detail discussion in this respect is not necessary due to orders of this Court. Today Shri Jaiswal, learned Counsel has relied upon judgments reported at – 2009 [5] Mh.L.J. 138 (Para No.4) (Union of India .vrs. Singh Builders Syndicate); (2006) 2 SCC 638 (Para No.5) (Punj Llyod Ltd. .vrs. Petronet MHB Ltd); (2010) 1 SCC 673 (Para No.8) (Bharat Sanchar Nigam Ltd. .vrs. Dhanurdhar 2 Champatiray), (2010) 6 SCC 394 (Para No.18) (Denel [Proprietary] Ltd. .vrs. Bharat Electronics Ltd and another) to urge that respondents had right to appoint their officers as Arbitrators, as per the Arbitration clause for a period of 30 days and thereafter till the matter was filed before this Court. After the matter is filed, that right ceases. It is further urged that being paid employees, the possibility of bias is apparent and hence, in such situation when independence and impartiality itself is in dispute, the third person as per the provisions of Section 11[6] of the Arbitration and Conciliation Act, needs to be appointed as Arbitrator. Shri Lambat, learned Counsel has relied upon the judgment of Hon'ble Apex Court delivered in Civil Appeal No. 6324/2004 dated 19.07.2007 (Union of India .vrs. Krishna Kumar); 2008 (3) Arb.LR 349 (SC) (Northern Railway Administration .vrs. Patel Engineering Co. Ltd.) and recent judgment of Hon' ble Apex Court delivered in Special Leave to Appeal (Civil) No.10886/2009 dated 09.08.2010 (Union of India .vrs. M/s. Khazana Projects & Industries). According to him the facts here do not show any bias or prejudice being caused to the applicants by appointing the officers of 3 Railways only. He contends, that when Arbitration clause itself contemplates such appointment, the applicants cannot be permitted to act contrary to it. Perusal of various judgments referred above, clearly show the primacy given by the Hon'ble Apex Court to appointment of Arbitrators agreed by the parties. Deviation is possible only when there are allegations of any bias or malafides. In present matter with open eyes, the applicants have accepted the Arbitration clause and Arbitrators as envisaged therein. The necessary facts to point out any prejudice, bias etc., or then even malafides are not brought on record. Recently in judgment delivered in Misc. Civil Application No.121/2010 dated 22.07.2011 (M/s. Nav Durga Bamboo Craft Private Limited .vrs. State of Maharashtra and another), I have taken similar view. In this situation, merely because notice was given or then proceedings are pending before this Court, that cannot be a sufficient ground to overlook the arrangement agreed to by the parties. The respondents are thus directed to appoint their nominee in accordance with Clause No.64 within a period of four weeks from today. Similarly, the applicants are 4 free to choose their nominee from list given vide Pursis Stamp No. 2682/2011 dated 15.03.2011 on record of present matter, within said period. The arbitration shall thereafter proceed with in accordance with law. In Misc. Civil Application the notice seeking appointment of Arbitrator was issued by the applicants on 23.04.2008 and thereafter on 27.08.2008. Respondents have not taken any positive steps thereafter. Pendency of this matter cannot be a ground to justify their inaction. Names contained in Pursis filed before this Court on 15.03.2011 could have been communicated to the applicants immediately, so as to avoid loss of time. The conduct of respondents, therefore, in delaying the arbitration cannot be appreciated. Subject to these observations, that application is also partly allowed on lines as disclosed above. No costs. Shri Jaiswal, learned Counsel at this stage states that respondents should appoint same person as their nominee and permit the applicants also to have same nominee as dispute in all three matters is of same nature and between same parties. Shri Lambat, learned counsel has pointed out that contracts and 5 work are separate and hence such an arrangement may not be possible. The applicants are permitted to make such representation in writing to the General Manager of the respective respondents, within a period of one week from today, and the said respondent shall try to find out a solution agreeable to all the parties within further period of one week, thereafter. JUDGE Rgd