MARWAHA CONSTRUCTION COMPANY Vs. AIRPORT AUTHORITY OF INDIA

JUDGEMENT

(1.) THIS petition has been moved under Sections 5, 11, 12 and 20 of the Arbitration Act, 1940. The prayer is that Shri W.D. Dandage, be sole arbitrator, respondent No. 2 (for short ''the arbitrator''), be removed as arbitrator and after such removal another arbitrator may be appointed by this Court. It is further prayed that proceedings before Shri W.D. Dandage, arbitrator, be stayed till the decision of this petition. Further it has been prayed that in the event Shri W.D. Dandage resigns, this Court may appoint an independent arbitrator.

(2.) CONSIDERING the petition, the main thrust appears to be that the petitioner does not want Shri Dandage as arbitrator in the matter. The other prayers of the petition are consequential or contingent. As such firstly it is to be seen whether the arbitrator should be removed or not.

(3.) HEARD the learned counsel for the petitioners. Before discussing the merits of the case it would be appropriate to first give certain brief facts which are relevant for the purpose. Between the petitioners and respondent No. 1 there is a contract agreement No. NITC/APD/I/23/85 for the construction of New International Cagro Complex at Delhi Airport. This agreement contains an arbitration clause. Certain disputes arose between the parties. Arbitration clause was invoked and disputes were referred for arbitration of Brig. Gobinder Singh. Thereafter some other disputes arose and the petitioners sought that they also be referred to Brig. Gobinder Singh through Court. Respondent No. 1 made a statement before the concerned court that it had no objection for making a reference. But instead of referring the disputes to Brig. Gobinder Singh respondent No. 1 appointed one Shri R.C. Jain as the arbitrator. Consequently the petitioners filed a petition in the court complaining the aforesaid act of respondent No. 1. During the pendency of that petition the petitioners and the respondent No. 1 agreed amongst themselves to jointly refer out of the court all the disputes to one arbitrator and would withdraw the cases in the court with the permission of the Court and were to appoint Shri L.R. Gupta as arbitrator. But in the meantime Shri. K.B. Andley, Advocate, was appointed by the Court to act as arbitrator. Shri L.R. Gupta did not consent to act as arbitrator and resigned and the Court also vide order dated 27.2.96 recalled its order of appointment of Shri K.B. Andley as arbitrator. The result was that there remained no arbitrator and consequently respondent No. 2, Shri W.D. Dandage was appointed as arbitrator by the authority which was empowered to appointed arbitrator under the contract agreement. He entered into reference. The petitioners as well as respondent No. 1 put in appearance before him. A controversy arose whether the arbitrator could proceed with the arbitration without getting the files of the arbitration proceedings held before Brig. Gobinder Singh and Shri R.C. Jain. From the letter dated 15.7.1996 sent by the arbitrator, Shri Dandage, to the parties in dispute, it would appear that Brig. Gobinder Singh had transferred the file to Shri R.C. Jain and that Shri R.C. Jain is now dead. It also transpires from that letter that the arbitration file is not traceable with the widow of late Shri R.C. Jain. As a result the present arbitrator Shri Dandage has not been able to procure arbitration file from the aforesaid two arbitrators. It is admitted by the learned counsel for the petitioners that the subsequent arbitrator Shri L.R. Gupta did nothing in this arbitration matter. So far as Shri K.B. Andley is concerned he held one sitting only in the arbitration proceedings.