N.B.C.C.Ltd vs J.G.Engineering Pvt.Ltd

3. In order to appreciate the controversy existing between the parties, it may be important to narrate the facts as emerging from the case made by the appellant, which are as follows :-

4. We have heard the learned counsel appearing on behalf of the parties and examined the impugned orders of the High Court and also other materials on record in depth and in detail. As noted herein earlier, the respondent had made an application before the Calcutta High Court under Section 14 of the Arbitration and Conciliation Act, 1996 (in short the "Act") for a declaration that the mandate of the arbitrator Shri A.K. Gupta had already stood terminated. As had already been mentioned above, the appointing authority had appointed three arbitrators prior to the appointment of Shri Gupta who were all unable to conduct the arbitral proceedings for some reason or the other. It may be kept on record that the respondent filed an application before the High Court for a declaration that the appointment of the arbitrator namely, Shri Amitava Basu, who was appointed as the sole arbitrator prior to the appointment of Shri A. K. Gupta had stood terminated by an order dated 20th of September, 2004, by which the High Court had terminated the 6 appointment and ordered the appointing authority of the appellant to appoint a new arbitrator who will conclude the proceeding and pass an award within six months from the date of his appointment. Subsequent to this order of the High Court, the appellant appointed Mr. AK Gupta as the new arbitrator who was to complete his proceedings by 27th of March, 2005 i.e. six months from the date of his appointment. It is pertinent to mention that the appellant did not file any appeal against the above-mentioned order of the High Court. Therefore, it may be taken that the appellant had accepted the aforesaid order of the High Court and thereby accepted its decision to fix the time of the arbitration proceedings to be mandatorily concluded within six months from the date of appointment of the arbitrator. The order, thus having assumed finality, a time limit was imposed for the conclusion of the arbitration proceedings. Thus, the appellant is estopped from raising any objection against the imposition of the time limit as had been done by the Court in this respect. From the records before us, we have noticed that inspite of conducting a number of proceedings, the arbitrator was 7 unable to conclude the proceedings within the time fixed by the High Court. The arbitration clause in the contract enables the arbitrator to extend the time for making and publishing the award by mutual consent of the parties. From a perusal of the documents before us, we notice that the parties mutually agreed to extend the time till 31st August, 2005 for making and publishing the award, which were further extended by the parties till 30th of September, 2005 on account of the arbitrator having failed to conclude the proceedings within the previous date fixed by the parties. But the arbitrator having failed to do so by 30th of September, 2005, the respondent moved the High Court to terminate the mandate of the arbitrator as he had failed to conclude the proceedings within the time limit fixed by the parties. The High Court accordingly terminated the mandate of the arbitrator on account of his failure to publish the award within the time fixed by the parties. We are of the opinion that the High Court was perfectly justified in doing so on an application filed by the respondent before it. Quite interestingly, it has come to our notice that the arbitrator in question had appeared before the 8 High Court and submitted that the award was ready but the same could not be published on account of the interim order passed by the same restraining him from publishing it. There was, however, no order of the Court restraining the arbitrator from publishing the award till almost three months after the expiry of the time fixed by the mutual consent of the parties to make and publish the award prior to the interim order passed by the High Court.

and

(b) He withdraws from his office or the parties agree to the termination of his mandate.

16. The appeals are thus allowed to the extent indicate above. There will be no order as to costs.