HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. (ORAL)
I.A.No.1449/2013 (exemption)
Exemption allowed, subject to just exceptions. The application is disposed of.
OMP No.77/2013 & I.A.No.1448/2013
1. The abovementioned petition has been filed by the petitioners under Section 11 read with Section 14(1)(a) & 14(2) of the Arbitration and Conciliation Act, 1996 (in short, called the “Act”) seeking directions to terminate the mandate of the sole arbitrator. It is an undisputed fact that earlier also, the petitioner No.1 filed the petition under Sections 14 & 15 of the Act seeking same prayers that the Arbitrator who was appointed to adjudicate the disputes and differences between the petitioner and the respondent should be withdrawn and assigned to some other independent Arbitrator nominated by the Court. The alternative prayer was also made that the arbitration proceedings initiated on the basis of purported agreement to sell dated 16th May, 1986 should be quashed on the grounds of delay and laches and abuse of process of law.
2. The averments made in the present petition as well as in the earlier petition are almost the same. The respondent No.2, Abdul Salam nominated Sh.K.K.Aggarwal, Advocate to act as Arbitrator. It was not disputed by Abdul Salam that he waited for more than 24 years to invoke the said clause as there were some litigations concerning half of the property in question between Mohd. Aslam and some third party in which there was an interim order. The said litigation ended with an order passed by the Supreme Court in 2010. Thereafter, Abdul Salam invoked the arbitration clause.
3. The main contention of the petitioner Mohd. Aslam is that the claim of respondent No.2, Abdul Salam was barred by laches. Learned counsel appearing on behalf of the petitioner admitted that in the earlier petition under Sections 14 & 15 of the Act, one of the prayers was that the Arbitrator should be withdrawn and the Court should assign the proceedings to some other independent Arbitrator nominated by the Court and the said petition was disposed of vide order dated 21st October, 2011.
4. One of the allegations made in the earlier petition was that petitioner No.1 challenged the appointment of the Arbitrator before him as well as issue of limitation. However, the application was not disposed of. The learned Judge while passing the order on 21st October, 2011 disposed of the OMP No.578/2010 and issued the directions to dispose of such application in accordance with law on merits and not to reject the same on the ground of the delay in making such application.
5. Learned counsel for the petitioners has not disputed the fact that such application has been disposed of by the Arbitrator. He submits that the petitioners have filed the complaint to the Commissioner of Police dated 12th August, 2010. Therefore, it is not proper to continue with the proceedings before the same learned Arbitrator.
6. It is pertinent to mention that the alleged complaint to the Commissioner of Police is dated 12th August, 2010 while the earlier petition filed by the same very petitioner No.1 i.e. Mohd. Aslam which was decided on 21st October, 2011. It appears that when the earlier petition under Sections 14 & 15 of the Act was decided by the Court, the factum of filing the complaint before the Commissioner of Police was very much there with the petitioners.
7. Under these circumstances, I am of the view that the present petition is not maintainable and the same is accordingly dismissed. However, it is made clear that the petitioners have liberty to raise all the claims and objections before sole Arbitrator and will also have one more opportunity under the law to raise such objections if there was occasion on the part of the petitioners to file the objections under Section 34 of the Act. No costs.
JANUARY 30, 2013/ka (MANMOHAN SINGH) JUDGE