EXECUTIVE ENGINEER, R.E. DIVISION Vs. GANGARAM CHHAPOLIA

JUDGEMENT

(1.) AN F -2 agreement was entered into between the Petitioner and the opp. party as a contractor for construction of the work 'Improvements to Darpanarayanpur Minor Irrigation Project in the District of Puri. There was an arbitration clause in the agreement to the effect that in case of any dispute arising between the parties relating to the execution of the work the same would be decided by an arbitrator to be appointed by the Chief Engineer. A dispute between the parties under the agreement having arisen, the Chief Engineer concerned appointed Shri J.B. Swain, Superintending Engineer as an arbitrator. The said arbitrator by letter dated 28 -12 -1976 intimated to the Court below his inability to act as such, in view of the pressing nature of his normal duties. The learned Subordinate Judge, Cuttack on 6 -1 -1977 on receipt of the information from the arbitrator in exercise of his powers under Section 5 of the Arbitration Act (hereinafter called the C Act') revoked the authority of the arbitrator and posted the case to 10 -1 -1977 for fresh nomination. This step, as it appears from the impugned order taken by the Court below, was in exercise of his jurisdiction under Section 8(1)(b) of the Act. On 10 -1 -1977 the parties having been asked to supply the vacancy, the Government Pleader for the present Petitioner instead of suggesting some name to be appointed as arbitrator filed an application in the Court below challenging its territorial jurisdiction to appoint the arbitrator. As on a previous occasion the original agreement entered into between the parties was the subject -matter of another proceeding under the Act before the Court below (vide Misc. Case No. 163 of 1976) and in that misc. case the Petitioner had not raised any objection to the territorial jurisdiction of the Court below, the learned Subordinate Judge did not entertain the objection of the Government Pleader regarding want of territorial jurisdiction and held that he had jurisdiction to entertain the case for the purpose of filling up the vacancy caused by the unwillingness of Shri J.B. Swain to act as an arbitrator. The opp. party submitted two names for being considered for appointment as an arbitrator. Those names were opposed to by the learned Government Pleader in the Court below. But while opposing the names submitted by the opposite party, no fresh name was suggested by the present Petitioner through the Government Pleader. Thus, as there was no concurrence between the parties regarding the appointment of a fresh arbitrator the learned Subordinate Judge in exercise of his powers under Section 8(2) of the Act appointed Shri T.T. Patnaik, Financial Advisor, Government of Orissa (Retired) as an arbitrator to adjudicate the dispute between the parties as per the agreement in place of Shri J.B. Swain. This was so done by the impugned order. Being aggrieved by the said order the Petitioner has come up to this Court with the present revision.

(2.) MR . D.P. Mohapatra, learned Additional Government Advocate for the Petitioner, in support of the petition urges two points, viz., (a) the Court below had no territorial jurisdiction to appoint Shri T.T. Patnaik a an arbitrator in place of Shri J.B. Swain as the arbitration agreement had been entered into between the parties at Puri and, (b) under Section 8(1)(b) of the Act after an appointed arbitrator refuses to act in a case where the arbitration agreement does not show any intention that the vacancy so caused should not be supplied, any party to the agreement has to first of all serve the other party with a written notice to concur in the appointment of a new arbitrator as suggested. In case the concurrence is not made within fifteen days of the notice, then only the party whose notice has not been complied with may file an application in Court for appointment of a new arbitrator. Under Section 8(2) of the Act when such an application is made the Court is to appoint a new arbitrator after hearing the parties. In the present case, admittedly, the provisions of Section 8(l)(b) of the Act requiring the opp. party to serve notice on the Petitioner asking him to concur in the appointment of a new arbitrator have not been complied with. Further, no application also has been made by the opp. party in the Court below praying for appointment of a new arbitrator as required in Section 8(2) of the Act. Therefore, without strict compliance with the pre -requisite conditions as embodied in Section 8(1) and (2) of the Act the Court below had no jurisdiction to appoint fresh arbitrator.

(3.) FOR the reasons stated above I do not find any merit in this revision which is accordingly dismissed. In the circumstances, there will be no order for costs.