IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.2556 of 2009 M/s Prasad Construction & Co. a partnership firm having office at Lila Mohan Niwas, Mohalla Nai Sarai, P.O. & P.S. Bihar Sharif, District Nalanda through its Managing partner Bharat Bhushan Prasad. …….Petitioner Versus 1. The Union of India through the General manager E.C. Railway at & P.O. Hajipur, District Vaishali. 2. The Chief Administrative Officer E.C. Railway at & P.O. Hajipur, District Vaishali. 3. The Deputy Chief Engineer, E.C. Railway, Hazaribag P.O. District Hazaribag. ……...Opposite parties. For the petitioner : M/s Nand Kishore Singh and Sangeeta Singh, Advocates. For the opposite parties: Mr. A. Amamullah, Advocate. ----------- 09/ 30.04.2010 Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. This petition has been filed for appointment of substituted sole Arbitrator as the multimember of Arbitral Tribunal appointed by the opposite parties and as confirmed by this court has failed to act and enter upon the reference despite several attempts and as such the mandate has been terminated by service of notice under section 14 of the Arbitration and Conciliation Act 1996 (hereinafter referred to as ‘the Act’ for the sake of brevity) sent by the petitioner to the opposite parties. 3. Learned counsel for the petitioner has stated that after appointment of the Arbitral Tribunal by the authorities concerned and after its confirmation by this court the Tribunal has not functioned for quite a long period and due to such delay and negligence, it would be deemed refusal specially when one of the 2 members of the Tribunal has been transferred to some other place. He further submits that in the aforesaid view of the matter the provision of sections 14 and 15 of the Act has come into play, whereafter notice dated 09.06.2009 (Annexure-2) had been sent by the petitioner to the Arbitrators terminating the arbitration stating that undue delay constitutes inaction and makes the Arbitral Tribunal defacto unable to perform its duty or constitutes negligence in entering upon the reference and that undue deliberate delay in entering upon the reference constitutes deemed denial and refusal to act in the reference which is ground for termination of mandate of the Arbitral Tribunal. 4. However, in the said notice (Annexure-2) a request was made to the members of the Tribunal to take steps to commence the proceeding within fifteen days from the date of receipt of the said request and conclude the proceeding at the earliest and if they failed to do that their mandate as appointed Arbitrators shall stand terminated under section 14 of the Act and steps for appointment of independent sole Arbitrator shall be taken under section 15 of the Act. Thereafter the instant petition has been filed by the petitioner in this court on 18.08.2009. In this regard learned counsel for the petitioner relies upon a decision of this court in case of M/s N.R. Construction Pvt. Ltd. vs. The Project Engineer & ors., reported in 2005(1)P.L.J.R. 581. 5. Considering the entire facts and circumstances of this case, it is quite apparent that earlier a Tribunal was constituted by 3 the authorities in accordance with law as well as in accordance with the arbitration agreement and there was no illegality in the constitution of the said Tribunal and hence this court vide order dated 30.01.2009 (Annexure-G to the counter affidavit of the opposite parties) disposed of Request Case No.38 of 2008 filed by the petitioner holding that the Tribunal having already been constituted in accordance with law, the matter should be considered and decided by the Tribunal expeditiously preferably within a period of six months. 6. The said six months had ended on 31.07.2009, but there is nothing to show that the Arbitral Tribunal had seized to exist or any member thereof had refused to function or they had become dejure or defacto unable to perform nor anyone of the Tribunal had withdrawn from his office and the only matter concerned is delay due to which the claim of the petitioner is that he had sent notice dated 09.06.2009 (Annexure-2) to the opposite parties that if they will not conclude the reference within fifteen days, their mandate as appointed Arbitrators shall stand terminated thereafter. 7. It may be noted in this regard that in view of the direction of the court the period was ending on 31.07.2009 and about two months prior to it the said notice had been sent giving a time of fifteen days from the notice which was also well within the period allowed by this court. In addition to that the petitioner was not entitled to terminate the Arbitral Tribunal on his own, as the Arbitral Tribunal could be terminated either on the agreement of 4 the parties or if any party applies to the court for termination of the Arbitration as is quite apparent from section 14 of the Act. 8. So far the decision of a Bench of this court in case of M/s N.R. Construction Pvt. Ltd. (supra) is concerned, it is with regard to a situation where the authority of the Arbitrator had come to an end or where the Arbitrator had withdrawn from the office for any reason, but the said situation is not present in the instant case as neither any member of the Arbitral Tribunal has withdrawn nor the authority of Arbitrator has come to an end. So far the transfer of one of the members of the Tribunal is concerned, there is no bar that he will stop functioning as member of the Tribunal due to transfer. In the said circumstances, the notice sent by the petitioner dated 09.06.2009 (Annexure-2) is absolutely frivolous and bad in law and the petitioner had no jurisdiction to terminate the proceeding on his own and issue such notice to the opposite parties. 9. No doubt some delay had occurred as the time granted by this court ended in the month of July, 2009 but learned counsel for the opposite parties has pointed out that the date fixed in the said proceeding before the Arbitral Tribunal was 27.04.2010 on which date the petitioner had not appeared on the ground that he had approached this court in the instant M.J.C. case, whereafter the next date fixed in the proceeding is 03.05.2010. 10. Considering the aforesaid facts and circumstances of the case, this court does not find any merit in this petition, which 5 is accordingly dismissed with a direction to the Arbitral Tribunal to expedite the proceeding so that it is completed by 30th June, 2010 positively. Both the parties are directed to immediately approach the Arbitral Tribunal along with a copy of this order. harish/ ( S. N. Hussain, J. )