CHAWLA TECHNO CONSTRUCTION LIMITED Vs. EMBASSY OF ITALY

JUDGEMENT

(1.) Certain disputes having arisen between the parties in relation to the construction of the Italian Embassy Building Complex, including the residence of the Ambassador, by the petitioner, the same were referred to the arbitration of Justice Dalip K.Kapur (Retired Chief Justice of this Court). Before the arbitrator, the petitioner raised the question of the validity of the arbitrator's appointment and on 23/10/1994 the arbitrator after giving opportunity to the parties to file written submissions held that it was only after the written submissions were Filed before him that he would decide whether oral hearing was necessary on the question of the validity of his appointment. In the meantime, the period of four months for making and publishing the award expired and an application being O.M.P.No-80/95 was, therefore, filed in this Court for extension of time to enable the arbitrator to make and publish his award. The application was resisted by the petitioner on the ground that the arbitrator did not have any jurisdiction to arbitrate in respect of the matters which had been referred to him and that his appointment was illegal. On these pleas taken by the parties, the Court on 9/7/1997 passed the following order:- "This is an application under Section 28(1) of the Arbitration Act, 1940 by the petitioner for extension of time to enable the arbitrator, to proceed with the arbitration and make and publish his award. Although the application is opposed by the respondent-contractor on various grounds but the main ground on which the contractor seems to resist the extension of lime is that the arbitrator has no jurisdiction to arbitrate in respect of the matters which have been referred for his arbitration. It is alleged that the appointment of the arbitrator is illegal; the claims raised do not fall within his jurisdiction and neither the claim of Rs.23,02,799.00 , now made before the arbitrator, was raised against the contractor nor the rest of the claims are even quantified and as such they do not constitute pre-existing disputes, which could be referred for arbitration.

(2.) I have heard learned counsel for the petitioner. No arguments have been addressed on behalf of the contractor on the ground that the senior counsel who was briefed in the matter is out of India. Pleadings in the matter were completed in March 1996 and since then the matter is hanging fire. I have declined request for adjournment. From the reply filed by the contractor it appears and in fact it is not disputed by learned counsel for the petitioner that the objection with regard to jurisdiction of the arbitrator was taken by the contractor in his counter statement of facts and it was duly noticed by the learned arbitrator in the hearing held on 23/10/1994 when he made the following order:-

(3.) I am informed that the appeal filed against this order was dismissed by the Division Bench of this Court on 13/8/997. After the time was extended by the Court, the arbitrator again heard the parties, however, the proceedings could not be concluded and the respondent, therefore, filed another application under Section 28 of the Arbitration Act for extension of time to enable the arbitrator to make and publish his award. This application was registered as O.M.P.No-212/97. After the said application for extension of time under Section 28 of the Arbitration Act was Filed, the petitioner Filed the present application under Sections 5, II andl2oftheArbitration Act for revoking I he authority of the appointed arbitrator, namely, respondent No.2 and for passing such further order as the Court may deem just and proper in the circumstances of the case.