SHIVHARE ROADLINES Vs. GAMMON INDIA LTD

JUDGEMENT

(1.) This petition is directed against the order dated 28/30.3.2012 passed by respondent No. 2. The petitioner preferred an application under section 12 of Arbitration and Conciliation Act, 1996 (for short, the 'Act') for restraining the arbitrator to conduct the arbitration proceedings. The arbitration application (Annexure P/10) was filed on the ground of bias. The main attack of the petitioner on the ground of bias is the alleged conduct of the arbitrator. In the said application it is stated that the arbitrator was appointed pursuant to Supreme Court's order dated 23.7.2010. The arbitration proceedings were belatedly started by the arbitrator after sending various reminders by the petitioner. The first meeting was conducted on 7.3.2011 wherein the arbitrator fixed a time-schedule for conducting and completing the arbitral proceedings. The petitioner submitted its claim within the time limit. The respondent did not adhere to the time limit and prayed for time beyond the time schedule fixed by the arbitrator. The arbitrator in spite of objection of petitioner granted time to file statement of defence by the respondent. The said time was granted up to 15.9.2011 but within said time also the statement of defence was not filed. The objection of petitioner is that time was generously extended in favour of the respondent for filing its defence statement. It is further stated that the matter was fixed on 2.1.2012 and statements of witnesses were recorded. On 6.2.2012 time was again extended in favour of the respondent to file statement of defence. On the strength of these allegations, it is stated that the arbitrator is extending undue favour to the respondents. It is also stated that because of unnecessary delay in conducting the proceedings, the petitioner is required to pay Rs. 10000/- on each meeting, which is a sheer waste for no valid reason. On the strength of these allegations/factual backdrop, it is alleged that the petitioner has justiciable doubt in respect of independence and impartiality of the arbitrator. Thus, the basic ground of challenge is the reasonable likelihood of bias on the basis of aforesaid factual backdrop. I have heard Shri Dudawat, learned Counsel for the petitioner at length.

(2.) Shri Dudawat cited NBCC Limited vs. J.G. Engineering Private Limited, 2010 2 SCC 385and also Indira Rai vs. Vatika Plantations (P) Ltd., 2006 127 DLT 646; Arun Ka Thpalia vs. J. M. Mukhi, 2009 162 DLT 441; and Delhi Chemical and Pharmaceuticals Works Pvt. Ltd. vs. Himgiri Realatirs Pvt. Ltd., 2011 181 DLT 504in support of his contentions.

(3.) There was a long debate in the legal circles regarding bias. The bias is described by Lord O' Brien CJ in Rex v. Justice of County Tyrone,1909 2 IR 763, as under: