GOEL ASSOCIATES Vs. JIWAN BIMA RASHTRIYA AVAS SAMITI

JUDGEMENT

(1.) THIS appeal under section 37 of 'The Arbitration and Conciliation Act, 1996 (for short the 'Act') has been filed against Award dated 1.3.2004 passed by Justice H.C. Goel (Retd.) allowing respondent's application under section 16 of the Act thereby holding that constitution of the arbitral Tribunal is not in accordance with the arbitration clause and as such he has no jurisdiction to decide the matters in dispute between the parties.

(2.) BRIEFLY narrated facts leading to this appeal are that appellant contractor is engaged in the profession of architects, engineers and town planners. Under an agreement dated 12.8.2000 between the parties appellant undertook to carry out the works connected with the construction of flats at Vasundhra (Ghaziabad) for respondent society. It appears that some disputes had arisen between the parties and respondent society terminated the agreement dated 12.8.2000. According to the appellant termination of the agreement was unlawful. Appellant served legal notice dated 21.6.2001 calling upon the respondent to pay damages on account of unlawful termination of the contract. Appellant also proposed the names of Justice Avadh Bihari Rohtagi (Retd.) as his arbitrator calling upon the respondent to appoint his arbitrator in terms of the arbitration clause.

(3.) IT appears from the record that parties submitted their respective claims/counter claims before learned Arbitrator. Respondent earlier filed two applications one challenging the appointment of Justice H.C. Goel (Retd.) as arbitrator and the other challenging the territorial jurisdiction. Both these applications were rejected by learned Arbitrator vide order dated 11.2.2002 copy whereof appears at page 36 of the paper book. Thereafter parties have led their evidence in support of their respective version. In fact parties concluded evidence before learned Arbitrator and the matter was at the stage of final argument when respondent filed an application dated 20.9.2003 under section 16 of the Act challenging the constitution of the arbitral Tribunal. It was contended on behalf of the respondent that the arbitration clause stipulates that the arbitral Tribunal should consist of three arbitrators, therefore, appointment of Justice H.C. Goel (Retd.) as sole arbitrator is in violation of the arbitration clause. This argument found favour with the learned Arbitrator. Accordingly, learned Arbitrator held that his appointment as the Sole Arbitrator in the case is not in accordance with law and he has got no jurisdiction to decide the matters in dispute between the parties. Feeling aggrieved, appellant has preferred this appeal under sub -section 2(a) of section 37 of the Act.