RAKESH KUMAR CONTRACTOR Vs. SUPERINTENDING ENGINEER IRRIGATION WORKS

JUDGEMENT

(1.) The petitioner is a contractor. He executed some work in pursuance of a contract entered into between the petitioner and respondents No. 2 to 4. A dispute arose between the parties. The petitioner on 10.3.1992 invoked the arbitration Clause 34 of the agreement. Sri Kuldeep Singh Sohan. Chief Engineer (Ganga), Irrigation Department, Sichai Bhawan, Vistoria Park, Meerut appointed himself as Sole Arbitrator on 17.7.1997. Notices were issued and proceedings were started by the Arbitrator. The petitioner filed Misc. Case No. 218 of 1998 impleading Sri Kuldeep Singh Sohan, the sole arbitrator and respondent Nos. 2 to 4 as parties. The application was allowed by the Additional District Judge vide order dated 18.5.1998. He removed Sri Kuldeep Singh Sohan and appointed in his place Sri K. K. Sahanan as the new arbitrator. This order dated 18.5.1998 was challenged by Sri Kuldeep Singh Sohan before this Court by means of Civil Revision No. 284 of 1998 which was dismissed summarily on 9.9.1998. The respondents No. 2 to 4 did not challenge the order dated 18.5.1998. The order became final. The new Arbitrator Sri K. K. Sahanan informed the respondents on 19.9.1998 about his appointment. The respondents sent a letter on 23.8.1998 to him to stay the proceedings for a period of one month. The respondent Nos. 2 to 4 filed Original Suit No. 610 of 1998 before the Civil Judge (Senior Division), Muzaffarnagar for a declaration that the judgment and decree passed in Misc. Case No. 218 of 1998 dated 18.5.1998 be declared null and void. Along with the suit, an application for interim injunction was also filed by the plaintiff. The trial Court issued notice to the defendants. Since no injunction was granted on the injunction application the respondents filed civil revision. The Revision Court granted injunction on 24.10.1998. This order was challenged by the petitioner/ defendant before this Court by means of Civil Misc. Writ Petition No. 35881 of 1998. This Court disposed of the writ petition on 6.11.1998 with a direction to the District Judge, Muzazffarnagar to decide the revision application either on 19.11.1998 or during the month. In pursuance of the direction of this Court, the revision was decided by 1st Additional District Judge. Muzaffarnagar on 25.11.1998 with the direction to Civil Judge (Senior Division), Muzaffarnagar to dispose of the injunction application after hearing the parties within 15 days. However, the interim order by which Sri K. K. Sahanan, the new arbitrator was earlier restrained, was permitted to work but he was restrained from delivering the award till the disposal of the injunction application 6-C and any proceedings drawn by the arbitrator were to be subject to the decision of the injunction application. The injunction application was heard by the Civil Judge (Senior Division), Muzaffarnagar and he allowed the injunction application by order dated 5th December, 1998 and restrained the arbitrator Sri K. K. Sahanan from functioning as arbitrator in pursuance of the order passed in Misc. Case No. 218 of 1998 decided on 18.5.1998. The petitioner preferred an appeal, which has been dismissed by the respondent No. 5 on 21.1.1999. The petitioner has challenged the orders passed by the respondent Nos. 5 and 6 dated 21.1.1999 and 5.12.1998 by means of this writ petition.

(2.) I have heard Sri Ravi Kant the learned Senior Counsel assisted by Sri A. K. Sharma the learned Counsel for the petitioner and Sri Abhinav Upadhyaya the learned Standing Counsel for the respondent Nos. 2 to 6. Respondent No. 1 had been deleted from the array of respondents by the petitioner.

(3.) Sri Ravi Kant the learned Counsel for the petitioner has urged that the order passed in Misc. Case No. 218 of 1998 dated 18.5.1998 became final and binding upon the respondent Nos. 2 to 4 and they could not challenge the order by way of a separate suit. The suit was nothing but an abuse of the process of the Court. The learned Counsel further urged that since the arbitration clause was invoked as per the agreement between the parties in the year 1992, therefore, the arbitration proceedings would be governed by the Arbitration Act, 1940 and not by the Arbitration and Conciliation Act, 1996. The view taken by the Courts below that since the sole arbitrator was appointed in 1997, therefore, the Arbitration and Conciliation Act, 1996 would apply is incorrect. The learned Counsel placed reliance on a decision of Apex Court in Shetty 's Construction Co. Pvt. Ltd. v. Konkan Railway Construction and Anr., (1998) 5 Supreme Court Cases 599. On the other hand Sri Abhinav Updhyaya, learned Standing Counsel has urged that the order dated 18.5.1998 passed in Misc. Case No. 218 of 1998 would not be binding upon the respondent Nos. 2 to 4 and the suit could be filed by them for declaring the order dated 18.5.1998 to be null and void. He further urged that since the Arbitrator was appointed in 1997. Therefore Arbitration any Conciliation Act, 1996 would apply and under the new Act, there is no provision for removal of an Arbitrator which was in the earlier Arbitration Act, 1940. Therefore, the order dated 18.5.1998 was of nullity.