ATLANTA CONSTRUCTION COMPANY Vs. AIRPORTS AUTHORITY OF INDIA

JUDGEMENT

(1.) Airport Authority of India (hereinafter referred to as the 'AAI') had invited tenders for construction of three Hangers and ancillary building of IGI Airport SH. Pavement Work. M/s. Atlanta Construction Company (I) Ltd. (hereinafter referred to as the petitioner) was also one of the tenders who submitted its bid. After scrutiny of these tenders, work was awarded to the petitioner vide letter dated 20th July, 1988. Thereafter, agreement dated 27th July, 1998 was executed. Some disputes arose between the parties. According to the petitioner, there were various reciprocal arrangements and AA1 failed to fulfil its obligations under the contract which led to delay in the execution. On the other hand, AA I blamed the petitioner for not doing the work as per the schedule. Work was, therefore, prolonged and was completed much after the stipulated date. The petitioner raised various claims and wanted AAI to make payment. The AAI refused to make payment on the ground that no such amounts were paid. In these circumstances, arbitration clause was invoked for appointment of an Arbitrator. Since no Arbitrator was appointed by the AAI, petition under Section 20 of the Arbitration Act was filed in this Court. After receipt of notices in their petition Sh. W.D. Dangad was appointed as the Arbitrator. On his appointment the petitioner filed the statement of claim along with documents. The proceedings before him commenced when on his appointment the learned Arbitrator issued notice dated 24th July 1995 to the parties. As under the provisions of Arbitration Act, 1940, award is to be given within four months and the proceedings could not be completed within four months, parties were extending the time by mutual consent. Last extension was up to 25th April, 1996. Thereafter the petitioner refused to give its consent. When the matter came up before the learned Arbitrator on 29th April, 1996, the learned Arbitrator for want of further extension passed the order that since time for making the award had expired the interested party may approach the Court for getting the time enlarged suitably.

(2.) In these circumstances, while the AAI has filed application under Section 28 (OMP No. 110/97) for enlargement of time, the petitioner has filed application under Sections 5, 11 and 12 of the Arbitration Act, 1940 for removal of the Arbitrator and for appointment of another Arbitrator in his place.

(3.) It would be appropriate to deal with the application of the petitioner as the result of the application of AAI would depend upon the outcome of the petitioner's application. There are three grounds on the basis of which the petitioner wants removal of the authority of the learned Arbitrator, namely, (a) the Arbitrator is considering the counter-claim of the respondent though those claims are not permissible; (b) there is unnecessary delay in proceedings as the AAI is not allowing the proceedings to go on smoothly and the Arbitrator is yielding to their pressure tactics; (c) the petitioner has submitted objections to the admissibility of the counter-claims of the respondent and the delaying tactics adopted by the AAI, however, the learned Arbitrator is not considering those objections.