PRASUN ROY Vs. CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) Special leave granted. This is an application challenging the order of the learned single Judge dt. 8th Dec. 1986 of the High Court of Calcutta. By the impugned judgment the said learned Judge has set aside the order dt. 19th April, 1983 of another learned single Judge on the ground, inter alia, that the first learned Judge, when she passed the order, acted without jurisdiction. There was an arbitration agreement. Clause 25 of the said Agreement, inter alia, was as follows :

(2.) On that basis the respondent 1, had moved an application for removal of the named arbitrator before the first learned Judge which came up for hearing on 19th April, 1983 and this was by filing of an application under S. 20 of the Arbitration Act for an order for filing the arbitration agreement, for appointment of an arbitrator and for other consequential reliefs. By the order dt. 19-4-83 the said learned Judge has recorded the facts of this case and further recorded that by virtue of Cl. 25 of the agreement the appellant herein had prayed for appointment of an arbitrator for determination of the dispute that had arisen which had been set out in para 15 of the petition. Inasmuch as according to the appellant the directors of all the units of Calcutta Metropolitan Development Authority had already expressed their opinion in respect of the disputes that had arisen between the appellant and the respondent and inasmuch as by the Central Tender Committee, the Directors were members. Under the circumstances the appellant apprehended that the appellant might not get justice or proper relief under such circumstances. There was reasonable basis of the apprehension against the unnamed arbitrator, and it was urged that instead of appointing any officer of the respondent as arbitrator an independent member of the Bar to be appointed as arbitrator. The learned Judge passed such order on 19th April, 1983 while recording these facts as alleged by the petitioner. These appear to have been reasons for appointing Sri Amitav Guha as the arbitrator in this case in terms of prayer (c) of the said petition.

(3.) The learned Judge in the impugned order has observed that if the Court was bound to enforce the particular agreement with which the parties came to the Court, and the parties were not entitled to have any fresh opportunity to appoint a new arbitrator as that would amount to a new agreement between the parties. This position is good in so far as it goes. But that does not solve the problem in all situations. The learned Judge also observed that no appointment can be made by the Court on the ground of disqualification of the arbitrator without having proper materials on record and without coming to a definite finding on this point. The learned Judge further observed that the Court either should have given effect to the agreed machinery for appointment of the arbitrator or it could have appointed afresh after coming to a clear finding that all Directors of the Unit of C.M.D.A. were biased against the appellant herein as well as they had rendered themselves disqualified from being appointed as arbitrators. Until all of them were found disqualified, the Court did not have the jurisdiction to appoint any new one and had to follow the correct machinery. It appears that the first learned Judge has in fact held that the arbitrator named had become disqualified himself on the ground of bias and on that basis, appointed an outside Advocate, Sri Amitav Guha as the arbitrator. If the respondents were not satisfied they could have moved an appeal against the order; instead respondents participated in the arbitration proceedings and acquiesced in such appointment. The order was made on 19-4-83 appointing Shri Amitav Guha an advocate of the Calcutta High Court as sole Arbitrator. The arbitrator appointed started arbitration proceedings in which both the parties submitted to his jurisdiction and filed their respective claims and other documents in support thereof. It appears from the List of Dates submitted before us that respondent 1 moved three interlocutory applications at different points of time which were, however, disposed of with orders in favour of the appellant. Both parties got extension of the arbitration proceedings even by Hon'ble Mrs. Justice Pratibha Bonnerjea at least 14 times and the last extension was granted up to November, 1985 by Justice Mrs. Bonnerjea. In the meantime the said Arbitrator had held 74 sittings which were attended by the parties of both sides and their counsel. A large amount of time and money, same at the cost of public have been spent on these.