UNION OF INDIA Vs. BHUPINDER SINGH BINDRA

JUDGEMENT

(1.) This revision is directed against the order dated 9.11.1990 of Subordinate Judge Ist Class, Chandigarh under Sections 5, 11 and 20 of the Arbitration Act, 1940 . A certain work allotted to the respondent Bhupinder Singh Bindra, Government Contractor and in this connection, agreement No. 19 of the year 1977-1978 was entered into for the construction of Geometrical Hill at Chandigarh. The agreement contained arbitration clause to the effect that in case of any dispute arising out of the agreement, the same had to be referred to the Arbitration of Superintending Engineer, Planning Circle, Chandigarh. According to the Contractor, certain dispute having arisen, a reference was made and Superintending Engineer, Planning Circle, Chandigarh entered upon the reference as the proceedings could not be concluded, the time was extended and ultimately the Contractor made the aforesaid application to the court seeking revocation of the authority of the Arbitrator on the ground that the Arbitrator had failed to use all reasonable despatch in entering on and proceeding with the reference and making an award. The application was contested by the Union of India through the Executive Engineer, Capital Project, Division No. 1, Chandigarh, The learned Sub-ordinate Judge framed the following issues :

(2.) Aggrieved by the order, Union of India has filed this revision petition.

(3.) The contention of Shri Anand Swaroop, Senior Advocate for the Union of India is that the only ground taken by the Contractor for the removal of the Arbitrator was delay. In other words, there was no other ground based on any misconduct on the part of the arbitrator or in his conducting the proceedings. Learned counsel referred to the specific reason for each adjournment set out in sub-para 2(v) of the grounds of Revision and submitted that a perusal thereof would show that the adjournments were mostly caused on account of one party or the other but not on account of the arbitrator himself. In fact, no objection could possibly be taken against the conduct of any individual acting as an Arbitrator because as many as six or more Superintending Engineers succeeded each other during the period 1980 to 1986. Shri Anand Swaroop emphasised that all along the period had been extended without any opposition from the Contractor. This according to the learned counsel also indicated his full faith in the Arbitrator. He assailed the order passed by the learned Subordinate Judge on two grounds:(a) both the orders for removal of the present Arbitrator and appointment of a new Arbitrator could not be made by one single order as had be done. In fact, the scheme of section 12 is such that an application for appointment of a person to fill the vacancy is envisaged after the occurrence of a vacancy. He has relied on Union of India and another v S. Mohinder Singh, 1979 AIR(All) 342 (D.B.),(b) In any case, if an Arbitrator was to be removed the other Arbitrator should have been appointed only in terms of the agreement of the parties, namely, the Superintending Engineer, Planning Circle, Chandigarh. The Arbitrator to be appointed could not be an outsider who was not answerable to any one and was beyond and outside the agreement of the parties. According to the learned counsel this was particularly so as the contractor had no grievance at all against the person of the Superintinding Engineer who had been acting as the Arbitrator before the present order was passed. He relied on Union of India v. M/s Ajit and Associates, 1990 AIR(Bom) 45 in which it was laid down that where the Arbitration Clause in a contract provided for the appointment of an Arbitrator by a named authority and not by consent of the parties, the court had no jurisdiction to appoint the Arbitrator under Section 8. The underlined principle of the above authority, it was submitted, was that it was necessary for the court to give effect to the terms of Arbitration Agreement.