STATE OF BIHAR Vs. DIGVIJAY CONSTRUCTION

JUDGEMENT

(1.) THIS civil revision application arises out of proceeding started by the plaintiff-opposite party by an application under section 20 of the Arbitration act (shortly 'the Act' ). The application was registered as Title Suit No. 13/91 in the court of the Subordinate Judge II, Seraikella and the petitioner was described as the defendant.

(2.) THERE was an agreement entered into between the parties and clause 52 thereof provides that in case of any dispute between the parties, the matter shall be referred to the sole arbitrator to be appointed in accordance with this clause. The contract of the oposite party was terminated by the petitioner. For resolving the dispute the opposite party prayed before the court for directing the petitioner to file the agreement in court and also for a direction from the court for appointing an arbitrator in the manner as provided in clause 52 of the agreement. By order dated 27. 8. 93 the court below heard the parties on the point of appointment of arbitrator. It was argued on behalf of the petitioner that without approaching the Chief Engineer for appointment of an arbitrator, the opposite party could not have filed an application under section 20 of the Act requesting the court to appoint an arbitrator. However, during course of argument the lawyer appearing on behalf of the petitioner con'eeded to the submission of the opposite party and, as such, the objection was rejected. The operative portion of the said order is to the effect, "write a letter to the chief Engineer, Subarnarekha Multipurpose project to send three names of expert and competent persons for appointment of an arbitrator out of them by this court. " The prayer made by the oppoiste party to send the aforesaid order to the concerned Chief engineer by special messenger, was also alllowed on 10. 9. 93. Neither the names were sent nor the petitioner took any step. The case was adjourned to 26. 9. 93 for sending the name of the arbitrators. The petitioner, on that date, prayed for some time for furnishing the names of the arbitrators and the case was thus adjourned to 18. 10. 93. Another petition was filed on 18. 10. 93 with a prayer to grant two months time for sending the panel of arbitrators but the said petition was not moved. The said prayer was opposed by the opposite party and after considering the facts and circumstances of the case another indulgence was given to the petitioner for furnishing the panel of arbitrator and the case was again adjourned till 26. 12. 93. On 5. 11. 93 a panel approved by Chief Engineer was filed in court and on 26. 11. 93 both the parties filed separate applications and prayed before the court that the arbitrator mentioned in their respective petitions should be appointed. However, on 16. 12. 93 another petition was filed on behalf of the petitioner praying therein to adjourn the case on the ground that on the instruction of the high officials, a Govt. Advocate was to be appointed in place of private lawyer. On that date the court found that though names of arbitrators had been filed in court by both sides but each party wanted to appoint arbitrator from his list. Under these controversies, the court thought it proper to appoint an arbitrator by the court itself and the case was fixed for passing order on 10. 1. 94. Shree A. Hussain was appointed as A. G. R and it was prayed on 10. 1. 94 that some time should be given to him to submit the panel of arbitrators. Last indulgence was given on that date. It was directed that panel should be furnished on 17. 1. 94. On 17. 1. 94, during course of hearing, both the parties agreed on the name of one K. R Shukla, retired Chief Engineer of irrigation Department of the State of Bihar for appointment of arbitrator. Though the opposite party initially pressed for appointment of one Sri R. N. Das or shree G. C. Lahari for such appointment but ultimately both the parties agreed to the name of Sri Shukla and on such agreement the court below, by the aforesaid order, appointed shree Shukla for arbitration and he was requested to submit his award within a month. On 15. 3. 94 a petition was filed by the petitioner for changing the name of said Sri shukla as arbitrator on the ground that his name was not proposed by any of the parties and, as such, his appointment was not agreeable to the defendant. It was further prayed that an arbitrator agreeable to both the parties be appointed and the name of sri Shukla be changed. On 22. 11. 94 another petition was filed by the petitioner informing the court that the apppointment of Sri Shukla was not agreeable to the petitioner and the matter regarding appointment of arbitrator is open to the court under the Arbitration Act. A prayer was made to appoint arbitrator from among the panel filed by the defendant or in the alternative, any person except Mr. Shukla for the ends of justice. Upon such petition being filed on the same day the court below acceded to the request made by the petitioner and for appointing an arbitrator a letter was directed to be sent to the Principal, R. I. T. Jamshedpur requesting him to send the name of a Professor of civil engineering presently engaged in civil construction work. The name of Professor A. K. Khan was sent by the Registrar of the said College to the court. However, it was noticed during course of argument that Sri Khan was not in the rank of Professor and, as such, another letter of request was sent to the principal, R. I. T, Jamshedpur to send the name of a person in the rank of Professor. Neither parties raised any objection to the said order. On such request being made the names of some persons in the rank of professor were sent and by the impugned order dated 15. 12. 94 the court below appointed dr. J. R Singh as the sole arbitrator. Against this order the instant application.

(3.) ON the backdrops of the aforesaid uncontroverted facts the qustions which are to be answered in the instant case is