Court No. - 16
Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 61 of 2017 Applicant :- M/S Sona Builders & Another Opposite Party :- General Manager, N.C.R., Allahabad & Another Counsel for Applicant :- Vinay Kumar Khare Counsel for Opposite Party :- A.S.G.I.,Satish Kumar Rai
Hon'ble Ashwani Kumar Mishra,J.
Heard learned counsel for the petitioners.
This petition has been filed for appointment of arbitrator on the ground that the arbitral tribunal constituted has failed to act in terms of the Arbitration Act. Jurisdiction of this Court under Section 14 is also invoked for the purpose.
It is not in dispute that the an agreement was executed between the petitioners' partnership firm, and the North Central Railway, Allahabad, through its General Manager. The agreement contained arbitration clause. Dispute between the parties had arisen and referred to the arbitrator. An arbitral tribunal consisting of three officers was constituted in the year 2010. It appears that due to frequent transfer of officers the arbitral tribunal could hold only two meetings during the last 7 years. After the Arbitration Act 1996 was amended in 2016, the arbitral tribunal consisting only of railway officers would be hit by Section 12 (5) of the Act. This is particularly so in view of clause 64.7 of the agreement, as per which any statutory modification in the Act shall apply to the pending proceedings also. Reliance is also placed on the decision of this Court in Aargee Engineers and Co. and Another Versus Era Infra Engeering Ltd and Other reported as 2017 (4) AWC 3837 in which the following observations have been made in para 33 and 34, which are reproduced herein below:-
"33. A conjoint reading of various sub-sections of Section 11 of the Act has been interpreted to vest jurisdiction in the Supreme Court or High Court, as the case may be, to appoint an impartial arbitrator having requisite qualification to secure speedy resolution of dispute, by a reasoned order.
Expression 'necessary measure', 'independent and impartial arbitrator' etc. are words of wide amplitude, and have been invoked to vest jurisdiction so as to secure object of appointment of an impartial arbitrator and to secure early resolution of dispute. Although all endeavours are to be made to implement the terms of agreement but in circumstances already noticed, and for securing end objective of early resolution of dispute by appointing an impartial arbitrator required departure can always be made by a reasoned order.
34. It is true that if a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1) of Section 14, unless otherwise agreed by the parties, it is the 'court' defined under Section 2 (e) of the Act, which would have jurisdiction to decide on termination of mandate of arbitrator. Use of expression 'controversy' in Section 14(1) of the Act has an object to serve. A substantial disagreement on facts requiring adjudication has to be decided by the 'court' defined under Section 2 (e). This is so as such court can entertain evidence etc. in that regard. However, in cases where it is apparent on record that the arbitrator has failed to perform his functions, or for other reasons fails to act without undue delay, or where there is no substantial disagreement on termination of mandate of arbitrator, an arbitrator can be appointed exercising jurisdiction under Section 11 read with Section 15 of the Act. Such interpretation would clearly advance the cause of an early resolution of dispute by appointing an impartial arbitrator. Any different interpretation, as suggested by Sri Bhanot, would unnecessarily result in multiplicity of litigation at different forums, causing substantial delay, and would not sub-serve the object of Act."
In view of the settled position existing on records, there is no factual issue on the plea that the tribunal has failed to act. Jurisdiction of this Court, therefore, is liable to be invoked under Section 11 / 14 of the Act for appointment of arbitrator. Let Mr. Justice Arvind Kumar Tripathi (retired Judge) of this Court, r/o AD6, Ekankikunj, Rajapur, Allahabad, Phone Nos. 09415253690 and 2624025 be appointed as arbitrator, subject to his consent in terms of Section 11 of the Act. The registry is directed to obtain consent of the proposed arbitrator within three weeks.
List thereafter.
Order Date :- 28.3.2018 M/A.