HIDNSTAN STEEL WORKS CONSTRUCTION LTD Vs. RAJ KUMAR

JUDGEMENT

(1.) Gurnsharan Sharma, J.-The petitioner has challenged the order dated 14-2-1994 passed by the Second Subordinate Judge, Chaibasa in Misc. Case No, 12 of 1993, whereby it has been held that Mr. Justice Uday Sinha. a retired Judge of this Court, now practising as an Advocate in the Hon'ble Supreme Court of India was not finally appointed as an Umpire, and another person has been appointed as Umpire.

(2.) Admittedly, the opposite party entered into an agreement with the petitioner for carrying out certain contract works in connection whereof certain disputes arose and the same was referred to Arbitration. Both parties nominated one Arbitrator each. The two Arbitrators were required to appoint Umpire proceeding with the arbitration. Accordingly, on 4-7-1993, both held discussions on the nomination/appointment of Umpire. On 5-7-1993, Opposite Party's Arbitrator wrote a letter to the petitioner's Arbitrator that he agreed to the name of Justice Uday Sinha (Retd) as Umpire and gave his secood option in favour of one Sri B.B. Prasad. Accordingly, on 12-8-1993, the petitioner's Arbitrator wrote a letter to Justice Uday Sinha (Retc) regarding his appointment as Umpire. In reply thereto, Justice Sinha by his letter dated 31-8-1993 informed the petitioner's Arbirator that he had no Abjection to act as Umpire,in the disputes, provided both sides are agreeable to it and opposite party's Arbitrator also writes to him accepting him as Umpire and, if the parties agree and write to him, both sides shall have to deposit Rs. 5000/-which would be non-refundable and that he would charge Rs, 5,500/-per day as fee to be borne half by each of the parties, besides secretarial expenses. Thereafter, on 7-9-1993 the Opposite Party wrote a letter (Annexure-B) to both Arbitrators that he was not in a position to bear the expenses of the Umpire. Thereafter, on 13/19th, September, 1993, both the Arbitrators held siting in which the Arbitrator of the opposite party stated that the appointment of Umpire was not made ; rather only consent was invited and hereupon it was reporued by the arbitrators on 19-9-1993 (Annexure-C to the counter-affidavit of the Opposite Party) that it was not possible to proceed further with the hearing and both the parties may take such appropriate action in the matter as they may deem fit.

(3.) Thereafter on 29-9-1993, the Opposite party filed a petition before the First Subordinate Judge. Cbaibasa in Misc. Case No. of 1993 stating, inter alia, therein that the Arbitrators did not reach an accord in the matter of appointment of Umpire and no appointment of Umpire could be made by them and as such both the Arbitrators have left the matter of appointment of Umpire to be solved by the parties. In the circumstances, let an Umpire be appointed by the Court. The petitioner filed rejoinder thereto stating, inter alia, that both the Arbitrators had already appointed Justice Uday Sinha (Retd) as Umpire. Subsequently, the Opposite Party was not agreeable to Justice Sinha, being the Umpire. In such circumstances, there was no occasion of appointment of another Umpire. The Court below by order dated 14-2-1994 has been pleased to hold that Justice Uday Sinha (Retd) was not finally appointed as Umpire and therefore, it was the option of the Court to appoint any other Person as Umpire in this case and appointed one Sri Sukhdeo Chandra Sinha (Senior Advocate) as Umpire.