Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Misc. Application No. 1307 of 2007 IN Arbitration Application No. 09 of 2006 M/s Rapti Contractors C/O Sunil Kumar, 205-Makhtulpuri, Roorkee, (U.K.) through its Partner Sri Yash Pal Singh …… Applicant. Versus Union of India through Secretary, Department of Post & Telegraph, Ministry of Communication, Dak Bhawan, Sansad Marg, New Delhi and three others. …Respondents. Sri S.K. Jain, learned counsel for the applicant. Sri Arvind Vashist, Assistant Solicitor General of India, learned counsel for the respondents. Date May 23, 2008. Hon’ble B.S.Verma, J. Civil Misc. Application No. 1307 of 2007 has been moved under Section 15 of the Arbitration and Conciliation Act, 1996 (for short the Act) by the applicant with the prayer to appoint some other arbitrator in place of Sri D.K.Gupta, Chief Engineer (Civil) Department of Posts, Bangalore, who was appointed vide order dated 7-8-2006 passed by this Court in Arbitration Case No. 9 of 2006. From a perusal of record, it is evident that an application under Section 11(5) and 11(6) of the Act was moved by the applicant on 15-7-2006 for appointment of Arbitrator to settle the dispute between the parties. The said application was registered as Arbitration Application No. 9 of 2006. Vide order dated 7-8- 2006 passed by this Court, one Sri D.K.Gupta, Chief Engineer (Civil), Department of Posts, Bangalore was appointed as Sole Arbitrator. It was directed that the Arbitrator shall enter into arbitration within one month from 7-8-2006 in the dispute raised by 2 the applicant and he shall deliver his award within six months thereafter. It may be mentioned that before passing the order dated 7-8-2006 by this Court, the respondents had appointed said Sri D.K. Gupta, Chief Engineer (Civil) as Sole Arbitrator. An objection was raised by the present applicant that the respondent could not have appointed Arbitrator as of right after the petition was filed before this Court. The objection of the applicant was considered by this Court and it was found that Sri D.K.Gupta appeared to be a fit person to be appointed as Sole Arbitrator and accordingly this Court appointed him as Sole Arbitrator by order dated 7-8-2006 and directed the Arbitrator to give his award within six months from the date of commencement of arbitral proceedings. By this application (Civil Misc. Application No. 1307 of 2007) the applicant has again raised an objection that the appointment of Sri D.K.Gupta, Chief Engineer (Civil) as Sole Arbitrator is illegal and without jurisdiction. But at the same time, the applicant has participated in the arbitral proceedings before the Sole Arbitrator. In this application, the applicant has levelled a number of allegations against the Sole Arbitrator and it has been mentioned in the application that Sri D.K.Gupta was not working with impartiality in conducting the arbitral proceedings and later- on, an application was moved by the applicant on 17-8-2007 before the Arbitrator either to withdraw or resign from the Arbitration and not to proceed in the matter further vide Annexure No. 6. According to the applicant, the sole arbitrator had shown the applicant absent on 17-8-2007. Hence the applicant has an apprehension that the Arbitrator is having biased mind against the applicant. In para no. 22 of the application it has been stated “that on the application moved by the applicant before the Arbitrator on 17-08-2007 neither he fixed any date for disposal of this application dated 17-08-2007 nor decided any date for its disposal, therefore it is clear that the Arbitrator has withdrawn from the office for any 3 reason and the withdrawal of an Arbitrator from the office for any reason is within the purview of the Section 15(1)(a) of the Act, as Section 15(2) contemplates for an appointment of the substitute Arbitrator or the replacing of the Arbitrator by another.” Subsequently, the applicant filed Supplementary Affidavit before this Court on 30-10-2007. It was stated in paragraph no. 3 of the affidavit “it is important to mention here that on 17-08-2006 while appointing the Arbitrator, the Hon’ble Court directed the Arbitrator to enter into the Arbitral Proceeding within one month from today i.e. from 07-08-2006 and deliver his award within 6 months thereafter. According to the applicant, the period granted to the Arbitrator had already expired in March 2007 and no further time was extended either by the Court or with the consent of the parties, therefore, after expiry of six months all the arbitral proceedings are non-est in the eye of law and the Arbitrator has no jurisdiction to proceed with the Arbitral proceedings. The application as well as the supplementary affidavit filed by the applicant-contractor was resisted by the opposite party- respondents Union of India by filing Counter Affidavit. In reply to the supplementary affidavit filed by the applicant, it has been stated in paragraph no. 22 as under:- “22. That in reply to the contents of the paragraph no.3 of the supplementary affidavit it is stated that while appointing the Sole Arbitrator the Hon’ble High Court directed the Sole Arbitrator to enter into the arbitral proceedings within one month from 07.08.2006 and deliver his award within 6 months thereafter. But the Applicant Contractor failed miserably in filing the required documents before the Sole Arbitrator within the prescribed period of approximately two months and took more than 9 months in doing so. Therefore, the delay has been on the part of the parties and not on the part of the Sole Arbitrator. It is wrong on the part of the Applicant Contractor to say that he has not extended the term of 4 the arbitral proceedings. The applicant Contractor vide letter dated 11.09.2006 has already undertaken to extend the term of arbitration suitably while requesting for time extension for submission of statement of claims due to on going festival season. A true copy of letter dated 11.09.2006 is being filed herewith and marked as Annexure CA-8 of the counter affidavit. Moreover when the parties take 9 months of time in filing the document before the Sole Arbitrator (against the Hon’ble High Court’s dead line of one month plus six months for publishing the award) and are attending the arbitral proceedings, the arbitral proceedings are automatically deemed to be extended. Therefore, the dead line fixed by the Hon’ble Court for one month plus 6 months has already been crossed and the term of the Arbitral Tribunal suitably extended by the implied consent of both the parties. Hence the contention of the Applicant Contractor is wrong and denied.” In paragraph no. 25 of the counter affidavit, the respondents-Union of India has stated as under:- “25. That the contents of the paragraph no. 6 of the supplementary affidavit are wrong and denied as the Sole Arbitrator has been acting continuously and even has issued the minutes of the 2nd hearing dated 30.08.2007 and further conducted the 3rd hearing on 5.12.2007 to 07.12.2007 at Haridwar. By making such statements the Applicant Contractor is trying to mislead the Hon’ble High Court.” I have heard learned counsel for the parties and perused the material on record including the supplementary affidavit and the counter affidavit filed by the parties along with its annexures. The admitted facts of the case are that an application bearing Arbitration Application No.09 of 2006 was moved by the applicant-contractor before this Court. Prior to passing of order 5 dated 7-8-2006, the respondents had appointed Sri D.K.Gupta, Chief Engineer (Civil) as Sole Arbitrator. Objection was raised to the effect that the respondents could not have appointed Sole Arbitrator as of right after filing of said arbitration application before this Court. This objection was considered by this Court while appointing Sri D.K.Gupta, Chief Engineer (Civil) as Sole Arbitrator with certain directions as mentioned in the order. The applicant had not assailed the order dated 7-8-2006 passed by this Court, hence the order had attained finality. The only contention raised before this Court by the learned counsel for the applicant was that the independence and impartiality of the Sole Arbitrator was questioned by the applicant, hence an independent arbitrator be appointed by this Court. In support of his contention, learned counsel for the applicant has relied upon the judgment of Delhi High Court in the case of Alcove Industries Ltd. Vs. Oriental Structural Engineers Ltd. and another [2008(1) Arb. LR 393 (Delhi). In para 26, the Delhi High Court has observed as under:- “26. To determine whether a petition is one falling within the scope of Section 14(2) of the Act, one must look to the averments made in the petitions. In the two petitions before me the primary submission of the petitioner is that the arbitrator, i.e. respondent no. 2 is de jure unable to perform his functions as an arbitrator inasmuch as there is a justifiable and reasonable apprehension of bias against him on account of his past dealings/association with respondent no.1 as respondent no. 2 has been appointed in various arbitral proceedings as an arbitrator, wherein respondent no. 1 is a party. It is also argued that on account of his personal involvement with the principal contract, as the Chairman of the Dispute Resolution Board under that contract between respondent no. 1 and the employer, i.e. NHAI, respondent no. 2 is de jure disqualified to function as an arbitrator. In that capacity respondent no.2 is obliged to make repeated visits to the 6 site of the contracts between the petitioner and respondent no.1, and, therefore, has personal knowledge, information and involvement with the said contracts. It is also argued that the conduct of the respondents in holding back information with regard to their past associations, dealings and the involvement of respondent no. 2 with the contract in question gives rise to justifiable doubts as to the independence and impartiality of respondent no.2 and this makes him de jure unable to perform his unction as an arbitrator.” In the case before the Delhi High Court, petitioner requested the sole arbitrator to make declaration as to his independence and impartiality and the arbitrator stated that in past he had no relations with respondent no.1 except for working as an Arbitrator/Member, Dispute Review Board in respect of some works executed by respondent no.1. It was found that the Arbitrator suppressed relevant information, which raised justifiable doubt as to independence and impartiality of arbitrator. It was held that the Arbitrator had become de jure unable to perform his functions as an arbitrator and his mandate stood terminated since his independence and impartiality were in justifiable doubt. The facts of the case at hand are quite distinct. This case law does not help the applicant. In the case at hand, it is amply clear that the applicant himself was dissatisfied by the appointment of arbitrator because the applicant had filed objection before this Court that the respondents should not have appointed the Arbitrator as of right after filing of arbitration application before this Court. Thereafter the present application No. 1307 of 2007 was moved, wherein it was again contended that Sri D.K.Gupta Chief Engineer (Civil) was wrongly appointed as sole arbitrator to decide the dispute/claims of the contractor, though the applicant had been fully aware that this Court too has appointed Sri 7 D.K.Gupta as sole arbitrator vide order dated 7-8-2006 and the objection of the applicant had already been considered by this Court. In such circumstances, to my mind, it does not lie in the mouth of the applicant to dispute on the name Sri D.K.Gupta, the sole arbitrator at this stage. Ultimately, by way of supplementary affidavit, the applicant has submitted that the period of six months as granted by this Court in its order dated 7-8-2006 had already expired and the arbitral proceedings are not completed and since no extension of time was sought by the Sole Arbitrator, the sole arbitrator had no jurisdiction to proceed with the arbitral proceedings. It was also mentioned in para 6 of the supplementary affidavit “it is further important to mention here that after 17-08-2007 the sole Arbitrator did not act as an Arbitrator, therefore it amounts to withdraw from the office also.” From a perusal of the counter affidavit filed by the respondents it is obvious that the hearing was conducted by the Sole Arbitrator on 30-8-2007, 5-12-2007 and 7-12-2007, therefore, the argument of the learned counsel for the applicant that the sole arbitrator shall be deemed to have withdrawn from his office is not tenable. Learned counsel for the applicant lastly contended that the period prescribed by the order of this Court vide order dated 7- 8-2006 had already expired and no extension of time had been sought by the Sole Arbitrator, therefore, after the expiry of the period of six months from the date of initiation of arbitral proceedings the Sole Arbitrator has become de jure unable to perform his functions. This contention is not acceptable. To my mind, the Act does not provide any maximum time limit for making award by the arbitrator. On the other hand, by making application dated 17-8-2007 (Annexure No. 6 to the Misc. application), the applicant himself had requested the Sole Arbitrator to the effect 8 “you are, therefore, requested to withdraw and resign from this arbitration. You are further requested not to proceed in the matter any more.” Such an attempt made by the applicant weakens his stand as has been taken in the application no. 1307 of 2007 as well as supplementary affidavit. In the instant case, the parties have not resorted to challenge procedure and they cannot be said to have agreed to the termination of the mandate of the arbitrator. The applicant has miserably failed to satisfy the requirements of either of the provisions of the Act so as to warrant termination of mandate and substitution of arbitrator as provided under Section 15 of the Act. For the reasons and discussion aforesaid, the application moved by the applicant under Section 15 of the Act has no force and the same deserves to be dismissed. Since the Sole Arbitrator was appointed by this Court vide order dated 7-8-2006 and a considerable time has elapsed, hence the Sole Arbitrator may be directed to decide the dispute referred to him expeditiously as far as possible. The application under Section 15 of the Act is dismissed. The Sole Arbitrator is directed to conclude the arbitral proceedings and give his award expeditiously as far as possible. Both the parties shall co-operate with the Sole Arbitrator in the speedy disposal of the arbitral proceedings. Costs easy. ( B.S.Verma, J. ) RCP 9 10