1 SB Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. S.B. Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. Date : 9.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.RK Thanvi, for the petitioner. Mr.IR Choudhary, for the respondent. - - - - - REPORTABLE Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 18.2.2008 passed by the Court of District Judge, Rajsamand in Execution Case No.6/2008 by which the executing court has held that the award dated 13.1.2006 which is sought to be executed is nullity and cannot be executed. Brief facts of the case are that according to the petitioner, in relation to the lease executed between the director of the petitioner company and the respondent no.1, a dispute arose and as per Clause 31 of the lease agreement, the matter could have been referred to the arbitrators named in 2 SB Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. Clause 31 of the lease agreement itself. By this clause Sarva Shri R.S. Tambi, Madhusudan Vyas and Giriraj Sanadhya were named as arbitrators. According to the petitioner, when dispute arose and the matter came for consideration of the arbitrators, then one of the arbitrators – Shri R.S. Tambi did not come for arbitral proceedings and as per the facts mentioned in the award, he sent his son Shri Ajay Tambi who informed the two other arbitrators that Shri R.S. Tambi does not want himself to be involved in the arbitral proceedings. However, in addition to the above, it is also mentioned in the award that R.S. Tambi's son further informed the arbitrators that whatever other arbitrators will decide, Shri R.S. Tambi shall have consent for that award. After saying so, arbitrator R.S. Tambi's son left the place. During the arbitral proceedings, another arbitrator Shri Madhusudan Vyas also left the place before the arbitration proceedings could have started and according to the facts mentioned in the award, he left the place by saying that whatever the remaining arbitrator i.e. Shri Giriraj Sanadhya decides, he will agree for that. In the award in addition to above, it is also 3 SB Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. mentioned that Shri Madhusudan Vyas stated that he does not want to interfere in any manner in the present proceedings. In this situation, Shri Giriraj Sanadhya alone passed the award dated 13.1.2006. When the above award was sought to be executed by filing execution petition, the respondent no.1 objected to its executability on the ground of the award being nullity. Learned counsel for the petitioner submits that since two out of the three arbitrators gave their consent for passing the award by the remaining third arbitrator, Shri Giriraj Sanadhya, therefore, Shri Giriraj Sanadhya passed the award dated 13.1.2006. The said award became final as no objection was filed by the respondent against the said award under Section 34 of the Arbitration and Conciliation Act, 1996. In view of the above reason, the award is legal and the executing court committed error of law by holding that the award is not executable. It is clear from the facts mentioned above itself that at the time of beginning of alleged 4 SB Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. arbitral proceedings, one of the named arbitrator Shri R.S. Tambi was not present and as per the award, the word of mouth of R.S. Tambi's son was accepted as true and the arbitrator proceeded. Even Shri R.S. Tambi could not have authorised two other arbitrators to decide the arbitral proceedings. The arbitrators have been named in the arbitration agreement and that is faith repose upon all the 3 arbitrators by all the parties. The Arbitrator could not have delegated his power to any other arbitrator. In view of the above reason, the absence of one of the arbitrators namely, Shri R.S. Tambi in arbitration proceedings itself became fatal. The same is position with Shri Madhusudan Vyas, who also left the place of arbitral proceedings which appears to be because of the reason that the arbitral proceedings were not going in harmonious atmosphere which is apparent from the facts stated in the award itself. In the award itself, it is stated that one of the contesting party Shri Yogendra Singhvi also left the place in annoyance and Shri Madhusudan Vyas left with Shri Yogendra Singhvi. The remaining arbitrator Shri Giriraj Sanadhya's mentioning in 5 SB Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. the award that Shri Madhusudan Vyas left the place by saying that whatever he (Shri Giriraj Sanadhya) will decide will be acceptable to the arbitrator, does not make him competent to pass the award solely or on behalf of Shri Madhusudan Vyas. The above facts clearly show that two out of three arbitrators did not exercise their wisdom over the facts for passing the award. In view of the above, the arbitration award dated 13.1.2006 on the face of it is wholly without jurisdiction rather say can be said to be no award in the eyes of law because that has not been passed by the Arbitrators. Learned counsel for the petitioner also submitted that since the matter involves crores of rupees and the petitioner may suffer heavily, therefore, the arbitrator may be appointed by this Court. Since there is a specific provision under Section 11 of the Arbitration and Conciliation Act for appointment of arbitrator in a case where the named arbitrators do not arbitrate or when one party who is authorised to appoint arbitrator fails to appoint arbitrator, then the arbitrator 6 SB Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. can be appointed through the Court, then there is no reason for this Court to exercise such jurisdiction which is not available to this Court under writ jurisdiction. Learned counsel for the petitioner further submitted that there may be difficulties in getting the appointment of arbitrator under the provisions of the Act of 1996 because of the reason that there may be objection of limitation. Since the petitioner was pursuing the remedy and obtained the award in the year 2006 and tried to execute it, then he found that the award is nullity, then those facts may be considered while considering the petitioner's prayer for appointing arbitrator in the proceedings under Section 11 sympathetically. In view of the above reasons, this writ petition is dismissed with liberty to the petitioner to approach appropriate forum for appropriate relief. (PRAKASH TATIA), J. 7 SB Civil Writ Petition No.2630/2008 M/s. Nakoda Granite & Marmo Ltd. vs. Yogendra Singhvi & Anr. S.Phophaliya