P.K. VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner in O. P. (Arbitration) No. 16 of 1984 before the Sub Court, Parur is the revision petitioner. That was a petition filed under Section 28 of the Arbitration Act praying for enlarging the time for making the award. The dispute between the petitioner and the respondents was referred to arbitration on 19 -5 -1975. The Arbitrator entered upon the reference on 23 -6 -1975. The Arbitrator held some enquiry on different dates. On 15 -1 -1976 the matter was adjourned without fixing any date since the officer who was the Government Arbitrator was to retire in February 1976 -Subsequently his successor issued notice on the arbitration proceedings to the parties fixing the hearing to 15 -3 -1976. He also sought for concurrence of the petitioner for extension of time for making and publishing the award. The C.R.P. No. 376 of 1986 Decided on 4 -12 -1986 petitioner declined to agree to the extension of time, although the respondents agreed for extension of time. The petitioner also filed O. P. No. 17 of 1976 before the lower court praying for an order restraining the 2nd Arbitrator from acting as the Arbitrator - The lower court passed an in term order restraining him from proceeding further in the arbitration matter. Subsequently that" officer retired from service oh 30 -9 -1979. Thereupon the petitioner filed a memo stating that he is not pressing O.P. No. 17 of 1976, without prejudice to his right to continue the arbitration proceedings before the successor -in -office. Accordingly the O. P. was dismissed on 6 -10 -1979. The petitioner thereafter approached the successor -in -office and requested him to continue the arbitration proceedings, by letter dated 18 -9 -1980. He sent a similar letter on 8 -6 -1981. The successor -in -office (the 3rd respondent) by letter dated 17 -6 -1981 informed the petitioner that respondents 1 and 2 have not expressed consent for enlargement of time and therefore he was unable to proceed with the matter. It was on these averments than the petitioner filed O. P. (Arbitration) No. 16 of 1984. Respondents 1 and 2 opposed the petition. In their objection it was contended that when the first Arbitrator relinquished his office in February, 1976, his successor was duly appointed by the Government and as per the agreement between the parties he was also duly authorized to act as the Arbitrator in this dispute. The Petitioner had no power or right to decline to appear before him. The contention that he had no authority to arbitrate was absolutely without merit. He could act only if the time for passing the award -was extended, since the time for passing the award expired on 22 -2 -1976 Instead of agreeing for extending the time, the petitioner filed O. P. No. 17 of 1976 before the Sub Court, Parur, to restrain him from acting as Arbitrator. Ultimately that O. P. was dismissed as not pressed The second Arbitrator had done whatever possible for passing the award. By declining to agree for the extension of time, the petitioner lost his right of arbitration. By the act of the petitioner himself the award cannot be passed now. Therefore it was played that the petition may be dismissed.

(2.) WHEN the petitioner requested the third Arbitrator (3rd respondent) to continue the arbitration proceedings, he informed him by letter dated 17 -6 -1981 that respondents 1 and 2 did not agree for extension of time and so he was unable to proceed with the arbitration. Even in spite of that, the present Arbitration O. P. No. 16 of 1984 was filed only on 16 -6 -1984 namely about 3 years thereafter. In the petition the petitioner has not mentioned any reason for this delay.

(3.) THE statements in paragraph 10 of the petition show that the petitioner was willing to accept the 3rd respondent (the third arbitrator). That itself shows that the objection to the second arbitrator had no merit. It may also be noticed that the petitioner was able to avoid a decision on merits in O. P. No. 17 of 1976 by the Sub Court, Parur, by filing a memo stating that he is not pressing that O. P. Thus he cleverly managed to avoid the officer, who was not acceptable to him.