VARKEY Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 S. 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 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 interim order restraining him from proceeding further in the arbitration matter. Subsequently that officer retired from service on 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-inoffice (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 that the petitioner filed O. P. (Arbitration) No. 16 of 1984.

(2.) 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 authorised 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 prayed that the petition may be dismissed.

(3.) IN Para. 5 and 6 of the petition the petitioner has mentioned the grounds on which he objected to the second Arbitrator. Those statements are as fellows: "5. Thereafter one Sri. T. K. Hussain Kunhi, with the designation Chief Engineer (Arbitration) assumed the role of the Arbitrator. As sri. Hussain Kunhi had neither been appointed by the parties nor was the authority of the appointed Arbitrator revoked under S. 5 of the Arbitration Act the Petitioner declined to accept him as the Arbitrator. 6. However the said Sri. Hussain Kunhi purporting to act as the Arbitrator in the reference posted the final hearing of the Arbitration case to 15-3-1976 with due INtimation thereof to the parties vide his letter dated 14-2-1976. "