IN THE HIGH COURT OF JUDICATURE AT PATNA Request Case No.3 of 2011 U.P. State Bridge Corporation Ltd. a body Corporate, having its head Office at 16, Madan Mohan Malviya Marg, Lucknow, having its local/ Camp office at Digha Ghat, Patna through Sri Vinod Kumar Project Manager, U.P. State Bridge Corporation Ltd., being a duly constituted Attorney of the said Corporation appointed through Power of Attorney Residing at NC-123 Gayitri Mandir Road, Kankarbagh in the town and District of Patna …..Petitioner Versus 1. The Union of India, through General Manager, East Central Ra8lway. 2. East Central Railway, through the General Manager, both having their offices at Hajipur, Vaishali, Bihar 3. Chief Administrative Officer (Con), East Central Railway, Mahendru Ghat, Patna -800004. …. Respondents -------- For the Petitioner : Mr. Jashawir Singh Arora, Advocate For the Respondents : Mr. Madhu Prasun, Advocate ------- 03/ 03.08.3011 Heard learned counsel for the petitioner and learned counsel for respondents, namely, East Central Railway and its authorities. 2. This request case has been filed by the petitioner for appointment of a sole Arbitrator in place of the present arbitral tribunal to arbitrate and decide the disputes and differences between the parties because the respondents and the arbitral tribunal appointed by them have failed to comply even the order of this Court dated 09.03.2011 passed in Request Case No. 10 of 2010. 3. This case has a very long history as the matter of arbitration is pending since 2007. The admitted facts are that there was an agreement between the parties for construction of guide bunds, foundation and substructure of Rail Bridge across river Ganges near Digha Ghat, Patna and the said agreement contained the terms and - 2 - conditions. As per Clause 24 of the Special Conditions of the Contract (General) read with Clause 64(1)(ii) of the General Conditions of Contract, 2001, an arbitration clause was provided for deciding the dispute between the parties through arbitration by an arbitral tribunal to be constituted in terms of the agreement. It is also an admitted fact that there was a dispute between the parties with respect to the contract works and on the request of the petitioner an arbitral tribunal was constituted in the year 2007, in which all the members were Railway authorities, but inspite of expiry of four years, the said Tribunal did not complete the arbitral proceeding and the matter kept hanging due to transfers/retirements/adjournments etc. In the said circumstances, the petitioner filed Request Case No. 10 of 2010 and even at the time of filing of that request case, there was a vacancy in the arbitral tribunal. 4. However, when the matter was taken up by this Court for hearing the said Request Case No. 10 of 2010 in admission matter on 09.03.2011, by that date the vacancy in the arbitral tribunal had been filled up by the respondents. Hence the said request case was disposed of vide order dated 09.03.2011 giving a last chance to the arbitral tribunal to complete the arbitral proceeding within three months after holding regular sittings at Patna from the date of receipt/production of a copy of that order, which was to be done by the petitioner within fifteen days from that date. It was also noted in that order that if the arbitration was not completed within the aforesaid period fixed by this Court, the petitioner would be at liberty to - 3 - approach this Court and if the facts claimed by the petitioner were found to be true, this Court would be constrained to pass appropriate orders in accordance with the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act’ for the sake of brevity ). A copy of the said order was produced before the arbitral tribunal by the petitioner on 25.03.2011 and hence the period, granted by this Court vide order dated 09.03.2011, was to expire on 25.06.2011. But when the arbitral proceeding was not completed by the arbitral tribunal within that period, the petitioner was constrained to file the instant Request Case No. 03 of 2011 on 29.06.2011, 5. A counter-affidavit has been filed on behalf of respondents no. 1 to 3, in which it has been stated that due to non- completion of the pleadings of the parties and the extreme urgency of the members of the arbitral tribunal, the said arbitral proceeding could not be completed within time, but when the arbitral tribunal was ready to hear the case of the parties and decide it finally on 22.07.2011, the petitioner informed the arbitral tribunal about the filing of the instant Request Case no. 03 of 2011 and the matter was adjourned. 6. Considering the respective averments of learned counsel for the parties and the materials on record, it is quite apparent from the earlier order of this Court dated 09.03.2011 (Annexure 22) passed in Request Case No. 10 of 2010 that three months’ final time was granted to the arbitral tribunal to dispose of the arbitral proceeding after holding regular sittings at Patna from the date of receipt/production of a copy of that order, but Annexures H, I, J, K & - 4 - L of the counter affidavit filed by the respondents shows that the petitioner produced a copy of the said order of this Court before the arbitral tribunal on 25.03.2011, on which date both the claimant and the respondents were present in Court, but the arbitral tribunal did not comply the order of this Court for holding regular sittings and fixed the next date for the proceeding after about a month i.e. on 21.04.2011. 7. However, on 21.04.2011, the petitioner submitted his reply to the claim of the Railway, but it were the respondents, who prayed for a long adjournment for submitting their counter reply, which was against the specific directions of this Court dated 09.03.2011 that the parties shall not take any undue adjournment. In addition to that, the Co-arbitrator Shri B. K. Singh also proceeded to attend one month AMP course at Baroda Staff College and hence the proceeding was adjourned to 10.06.2011 i.e. after fifty days. 8. Subsequently when the arbitral proceeding was taken up on 10.06.2011, another Co-arbitrator Shri Bijay Kumar was reported to have gone on sanctioned leave for 45 days and the other Co-Arbitrator Shri B. K. Singh also did not turn up for hearing on that date. Hence it was observed by the arbitral tribunal on 10.06.2011 that the next date of hearing would be fixed in due course and would be intimated to all concerned after resumption of duty by the said Arbitrators. 9. More than a month thereafter i.e. on 19.07.2011 the arbitral tribunal fixed hearing of the case on 22.07.2011. But in the - 5 - meantime the petitioner had already filed the instant Request Case No. 03 of 2011 on 29.06.2011 due to non-cooperative attitude of the members of the arbitral tribunal and violation of specific directions of this Court. 10. The entire facts and circumstances mentioned above depict that the delay caused in the arbitral proceeding was intentional. The members of the arbitral tribunal continued their dilatory tactics in deciding the arbitral proceeding since 2007 and when after about four years specific directions were given by this Court vide order dated 09.03.2011 passed in Request Case No. 10 of 2010, the said authorities did not flinch for a moment in disobeying the specific direction of this Court and continued their dilatory attitude although the petitioner had produced the said order of this Court before the arbitral tribunal on 25.03.2011 and filed his pleadings and reply by 21.04.2011. Thereafter, long adjournments were granted in the arbitral proceeding violating the specific directions of this Court for holding regular sittings at Patna and even after the long date fixed by the arbitral tribunal sometimes respondent-authorities took long adjournments to file their counter reply and most of the times one or the other member of the arbitral tribunal were not available and they saw to it that the time of three months granted by this Court vide order dated 09.03.2011 is expired. This attitude of the arbitral tribunal clearly amounts to disobedience of the specific directions of this Court vide order dated 09.03.2011 passed in Request Case No. 10 of 2010. 11. All these facts also disclose a very sorry state of - 6 - affairs that the members of the arbitral tribunal are inept & ineffectual by any standard, completely negligent towards their duties and having no sanctity for any law or for the orders of the High Court, which are binding upon them. All the training courses etc. imparted to them have clearly proved to be wastage of public exchequer, which comes from the hard earned money of the people. The Railway must take note of these observations and the order of this Court and act accordingly. 12. So far this case is concerned, it had already been mentioned in order dated 09.03.2011 passed by this Court in Request Case No. 10 of 2010 that if the arbitration was not completed within three months from the date of receipt/production of a copy of the said order before the arbitral tribunal, the petitioner would be at liberty to approach this Court and if the facts claimed by the petitioner were found to be true, this Court would be constrained to pass appropriate orders in accordance with the Act. In the said circumstances and in view of the claim of the petitioner having been found to be proved regarding the attitude of the tribunal, this request case is allowed and the arbitral tribunal appointed by respondent-authorities is hereby set aside and a sole Arbitrator is appointed to decide the arbitral proceeding expeditiously without giving any undue adjournment to any of the parties. 13. In the facts and circumstances of this case, Justice U.P. Singh, a former Judge of this Court and a former Chief Judge of Kerala High Court, presently residing at 37, Patliputra Colony, Patna- - 7 - 800013 is appointed as the sole Arbitrator to decide the arbitral proceeding. The erstwhile arbitral tribunal appointed by the respondents is hereby directed to send all the records of the arbitral proceeding to the said Arbitrator within fifteen days from today. 14. Both the parties are directed to approach the said sole Arbitrator within fifteen days from today, whereafter the said Arbitrator will fix early dates in the case and will also fix the remuneration and expenses, which shall entirely be borne by the East Central Railway and its authorities as the petitioner has been unduly harassed by the authorities for four years, violating even the specific order of this Court dated 09.03.2011 passed in Request Case No. 10 of 2010 . MPS/ (S.N.Hussain, J.)