STATE OF RAJASTHAN Vs. PARMANAND CONTRACTOR

JUDGEMENT

(1.) Both these appeals have been filed by the State of Rajasthan through Executive Engineer, Public Works Department, Division Baran, District Baran challenging the orders dated 30th January, 2010 passed by the District & Sessions Judge, Baran (hereinafter referred to as 'the lower court') in Civil Misc. Case No.51/09 and 35/03 respectively.

(2.) The short facts giving rise to these two appeals may be narrated as under:

(3.) It has been sought to be submitted by the learned Dy. Govt. Counsel Mr. Hari Barath, for the appellant in both the appeals that the arbitrator could not have proceeded further while the disputes were referred to the Standing Committee in view of Clause 23 of the agreement and in view of the fact that the Standing Committee had passed the order dated 10.5.02 rejecting the claims of the respondent-contractor. He also submitted that the lower court also could not have entertained the application of the respondent-contractor under Section 34 of the said Act, when the case did not fall under any of the grounds mentioned under Section 34(2) of the said Act. Relying on the decision of the Supreme Court in case of BSNL & Anr. Vs. Dhanurdhar Champatiray, 2010 1 SCC 673, the learned Govt. counsel has submitted that the right of the parties to appoint arbitrator would not automatically cease after the expiry of 30 days of receiving the request to appoint arbitrator from the other party, but will continue till the application under Section 11(6) was filed by the other party. According to him, in the instant case, the High Court should not have appointed the arbitrator as per the order dated 10.5.02 by holding that the appellant had lost the right to refer the dispute to the Standing Committee. The learned Govt. Counsel has also relied upon the judgment of the Supreme Court in case of State of Rajasthan & Anr. Vs. Ferro Concrete Construction Pvt. Ltd., 2009 12 SCC 1to submit that the sole arbitrator appointed by the High Court had committed legal misconduct and error apparent on the face of record by awarding certain claims of the respondent-contractor though there was no evidence adduced by him and therefore, such an award was liable to be set aside under Section 34(2) of the said Act. The Govt. Counsel has also argued that the arbitrator appointed by the High Court was known to the respondents and therefore, he could not be said to be an independent arbitrator.