DCM FINANCIAL SERVICES LTD Vs. NATIONAL BUILDING CONST

JUDGEMENT

(1.) Learned counsel for the Petitioner states that the Vakalatanama shall be filed during the course of the day.

(2.) In this Petition it has been prayed that the arbitral proceedings before Shri A.K. Pruthi should be stayed on the grounds that the Respondent/NBCC has subsequently appointed a different person to arbitrate upon the Claims raised by them. My attention has been drawn to the decision of the Hon'ble Supreme Court in Bhatia International vs. Bulk Trading S.A. and Another, (2002) 4 SCC 105 which pointedly states that a stay of arbitral proceedings is not contemplated under Section 9 of the Arbitration and Conciliation Act, 1996. Where a challenge has been made to the authority of the Arbitrator, that has to be ventilated before the Arbitrator himself who has to come to a decision under Section 13. Where he does not recuse himself, the remedy of the Applicant is to await the final Award and raise these objections at that stage.

(3.) In this Petition these questions do not arise for consideration for the reason that Shri A.K. Pruthi has superannuated/retired. The Arbitration Clause specifically contemplates that the C.M.D., N.B.C.C. will appoint the Arbitrator who will be an Engineer of NBCC not below the rank of Resident Engineer. On the strength of Himalayan Construction Co. vs. Executive Engineer, Irrigation Division, J & K and Another, (2001) 9 SCC 359, which affirmed and explained the earlier Judgment of the Court in Union of India and Others vs. Prabhat Kumar and Bros. and Another, 1995 supp. (4) SCC 525 , Shri A.K. Pruthi can uncontrovertibly no longer act as the Arbitrator.