JAYESH M GANDHI Vs. YOGENDRA N THAKKAR

JUDGEMENT

(1.) By this petition the petitioners challenge the award dated 16-12-2004. The facts that are material and relevant for deciding this petition are that admittedly in a contract between the parties there is an arbitration clause. That arbitration clause reads as under:-

(2.) Now, it is clear that even according to this letter the Arbitral Tribunal was not fully constituted and really speaking therefore there is no justification for the nominee of the Respondent No. 1 convening a meeting of the Arbitral Tribunal. It appears that on 30th September, 2004 except the nominee of the Respondent No. 1 nobody remained present on the appointed place and time and therefore the nominee of the Respondent No. 1 addressed a letter dated 4-10-2004 to all the partners except the Respondent No. 1. That letter reads as under: -

(3.) Thus, according to nominee of the Respondent No. 1 on the Arbitral Tribunal because six others arbitrators did not attend the meeting which was called by the nominee of the Respondent No. 1 on 30th september, 2004 their mandate stood terminated because of the provisions of Section 14 (a). Perusal of Section 14 (a) of the Arbitration and Conciliation Act shows that it lays down that the mandate of the arbitrator shall terminate if he becomes dejure or de facto unable to perform his functions or for other reasons fails to act without undue delay. Sub-section (2) of Section 14 lays down that if there is any controversy as to whether the mandate of an arbitrator stands terminated under Clause (a) of sub-section (1) , a party concerned, in the absence of any agreement between the parties, apply to the Court to decide on the termination of the mandate. It is clear that the co-arbitrator can not hold that the mandate of the other arbitrators stands terminated. Therefore, this letter dated 4-10-2004 from the nominee of the Respondent No. 1 on the arbitral Tribunal was totally beyond his authority and the nominee of the Respondent No. 1 was clearly acting in defiance of the law and was terming himself as sole arbitrator. By letter dated 1st November, 2004 addressed to the nominee of the Respondent No. 1 Mr. Gautam Ashra by some of the Petitioners, it was pointed out that his act of terminating the mandate of the other arbitrators is totally unauthorised. It appears that Mr. Ashra the nominee of the respondent No. 1 assumed the jurisdiction now as a sole arbitrator and made the award which is dated 16-12-2004.