KRISHNA KUMAR MUNDHRA Vs. NARENDRA KUMAR ANCHALIA

JUDGEMENT

(1.) This application under Section 47 of the Code of Civil Procedure (CPC) has since been filed on the strength of Section 36 of the Arbitration and Conciliation Act, 1996 by the respondent/judgment debtor against whom an Award is sought to be executed. Learned counsel in support of the application has taken three grounds to point out that the Award is a nullity. The first ground is that before referring the dispute to the Arbitrators requesting them to enter into the Arbitration, no notice of dispute was given to the respondent, as contemplated under Section 21 of the 1996 Act. According to him, straightway the matter was referred to the Arbitrators as would be evident from Annexure B to the application at page 28 thereof The second ground is that without the consent of the respondent or without taking recourse to law, the third Arbitrator was appointed by the two Arbitrators named in the agreement. Therefore, the Arbitral Tribunal was incompetent to arbitrate the matter. The third ground that was taken is that the Arbitral Award had been passed and the proceedings had been conducted by two of the Arbitrators or sometimes by one Arbitrator inasmuch as in paragraphs 10 and 11 of the application, it is pointed out that one of the Arbitrators, Parimal Sarkar, had withdrawn himself from the Arbitral proceedings and the other Arbitrator, S.K. Poddar, had also withdrawn himself from the Arbitration proceedings. Therefore, the proceedings itself was invalid in view of Section 14(1)(a) of the 1996 Act. He has elaborated his submission on these grounds and pointed out to page 50, Annexure F, which appears to have been signed by Mr. Sarkar and Mr. Poddar, viz., two of the Arbitrators and he has also drawn my attention to Annexure G of the application which also appears to have been signed by only two of the Arbitrators and not by Mr. S.K. Poddar. Section 14(1)(a) : Whether breached ?

(2.) So far as these two Annexures are concerned, it appears that the first one (Annexure F) was the resolution of the first sitting of the two Arbitrators whereby the third Arbitrator was appointed. Therefore, there was no question of signing the said resolution by the third Arbitrator when for the first time he was being appointed by the two Arbitrators. So far as the other document being Annexure G to the application is concerned, the same was signed by two of the Arbitrators other than Mr. S.K. Poddar who did not participate in the proceedings, i.e. in the hearing of the petition filed by the respondent No. 1. The learned counsel for the applicant/respondent admits that this was the petition in which allegation was made against Mr. Poddar. But then this is a minute of the proceedings where only the hearing was undertaken and this is not an order.

(3.) Mr. Mitra pointed out that the applicant had made two petitions-one against Parimal Sarkar and the other against S.K. Poddar and when these petitions were heard, Mr. Sarkar and Mr. Poddar respectively did not participate in the hearing in which allegations were made against one or the other of them. He further pointed out that the order rejecting the petitions were passed by three of the Arbitrators and was so signed by them. There is nothing to contradict the statement of Mr. Mitra. Learned counsel for the applicant-respondent has not drawn my attention to any other material from which it can be gathered that the proceedings was conducted by two of the Arbitrators or one or the other had withdrawn from the proceedings. Section 14(1)(a) provides that if the Arbitrator becomes unable to perform his function then the mandate shall terminate. In order to attract this provision, the facts disclosed from the material must show that the Arbitrator became unable to perform his function. In this case the Arbitrator, against whom allegation was made, abstained from hearing the application. But the order passed thereon appears to have been signed by all the three Arbitrators. Therefore, on facts, I am unable to hold that Section 14(1)(a) of the 1996 Act is attracted. Objection as to Jurisdiction : Breach of Section 21: Limits of objection