P. RADHAKRISHNAN Vs. M. A. GEORGE

JUDGEMENT

(1.) ADVOCATE Sri M. A. George took notice on behalf of the 1st respondent. The reason stated hereunder would show that there was no need to issue notice to respondents No. 2 and 3. This motion concerns an arbitration before two senior members of the bar. The petitioners seek leave of the court to revoke appointment of the joint arbitrator (the 2nd respondent herein) appointed by the 1st respondent. This petition is laid under Ss. 5 and 11 of the Arbitration Act. From the pleadings it is clear that the main ground for the revocation of the authority of the arbitrators is the alleged apprehension in the mind of the petitioner about the bias of the joint arbitrator. Substantiating this ground, the petitioners have made the following averments in the affidavit filed along with the petition :

(2.) "The petitioners now reliably understand that the joint Arbitrator, the second respondent herein nominated by the first respondent and the counsel appearing for the first respondent have intimate professional relationship that there are reasons to believe that the arbitrator nominated by the respondent the second respondent will not be able to discharge his duties in an impartial and fair manner. The petitioners reliably understand that there are arbitration proceedings pending, other than the present proceedings, in which they are appearing as the Arbitrator nominated and Counsel by/for one and the same party. On further enquiry the petitioners understand that for the last about 15 years or more they had been acting together as a team in many arbitration proceedings, one as the Arbitrator nominated by the party and the other acting as the Counsel for the same party ...... I reliably understand that M/s. Travancore Cochin Chemicals Ltd. had filed O.P. (Arb.) No. 46/82 before the Subordinate Judge's Court, Parur, seeking to revoke the authority of Shri S. A. Nagendran as an Arbitrator nominated by a contractor in the disputes that arise between M/s. Travancore Cochin Chemicals Ltd., and the said contractor Sri C. K. Govindankutty Nair. The petitioner in the said O.P. (Arb.) No. 46/82 pointed out that the counsel Sri M. A. George who was appearing for the contractor in said proceedings, was simultaneously acting as an Arbitrator nominated by another contractor, V. T. Abraham in which Sri S. A. Nagendran was acting as the Counsel for the said V. T. Abraham. When it was pointed out before the court that there would be a total failure of justice when the Arbitrator and the Counsel inter -change their positions, in simultaneous pending proceedings, the Arbitrator Sri S. A. Nagendran resigned as the Arbitrator and the Subordinate Judge's Court, Parur relieved him from the duties of Joint Arbitrator and appointed another nominee of the contractor as the Arbitrator. I reliably understand that there are certain arbitration proceedings even now pending in which Sri S. A. Nagendran is appearing as Counsel for the party for whom Sri M. A. George, the counsel herein, has been nominated as the Arbitrator." The first respondent has disputed the correctness of the above statements. It has specifically been stated in the Counter affidavits thus :

(3.) THE allegation in the petition at most constitutes the ground "misconduct of arbitrator". A mere apprehension of bias however, would not constitute a ground for removal of the arbitrator. Only such bias that amounts to misconduct, which makes it imperative, if justice was to be done, that the arbitrator shall be removed from his position as arbitrator. (Catalima v. Norma, 61 Lloyd's List Law Reports 360). To hold that the bias alleged amounts to misconduct, it should be shown that the facts proved would lead a reasonable person, not knowing the arbitrator's true state of mind, to think it likely that there was bias. Such bias could be defined as 'a predisposition to decide for or against one party, without proper regard to the true merit of the dispute'. (Mustill and Boyd, Commercial Arbitration 1982 edition and Secretary to Government, Transport Dept. Madras v. Munaswamy (AIR 1988 SC 2232)). The Supreme Court has also observed that "there must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent material". The test therefore is "would a reasonable man who is fully appraised of the facts and circumstances of the case would feel a serious apprehension of the bias." By way of illustrations, if the arbitrator makes remarks during the course of the hearing suggesting that he holds preconceived view as to the general truthfulness of the witnesses of the opposite party. In such facts/cases it could be held that the arbitrator has expressed an actual bias amounting to misconduct and in such cases if justice was to be done, the arbitrator should be removed from his position as arbitrator. (Catalima's case). Considered in the light of the above principles, it cannot be said that the apprehension of bias alleged by the petitioners is sufficient to remove the 2nd respondent from his position as arbitrator. From the facts stated above it is clear that there is no specific allegation of bias attributed to the 2nd respondent. There is nothing on record to show that there exists any kind of relationship between the 2nd respondent and the opposite party, the 1st respondent who nominated him. Nor for that matter is there anything to show that there is any kind of relationship between the 2nd respondent and the subject -matter of the dispute. The only allegation is that the 2nd respondent has some professional relationship with the counsel for the 1st respondent. It is interesting to note in this context that the said relationship in any event, had come to an end in 1984. It is an admitted fact that since 1984 there are no such instances where the 2nd respondent has been appearing for parties in the company of the counsel for the 1st respondent.