Arbitration proceedings -Court can appoint any arbitrator other than the prescribed arbitrator as per the terms of agreement - disputes between contractors and Railways - as per the terms of agreement a railway Officer was to be appointed as arbitrator - decades lapsed no award was passed - High court appointed former Chief Justice of the Sikkim High Court - challenged as invalid and beyond conditions of arbitration agreement - Apex court held that A period of nearly two decades has elapsed since the contractor had raised his claims for alleged wrongful termination of the two contracts. The situation is distressing and to say the least disturbing.
The power of the Court under the Act has to be exercised to effectuate the remedy
provided there under and to facilitate the mechanism contemplated therein. In a situation where the procedure and process under the Act has been rendered futile, the power of the Court to depart from the agreed terms of appointment of arbitrators must be acknowledged in the light of the several decisions noticed by us. We are, therefore, of the view that no infirmity muchless any illegality or failure of justice can be said to be occasioned by the order passed by the High Court so as to warrant any interference. We, therefore, unhesitatingly dismiss this appeal filed by the appellant-railways. =
Admittedly, the General Conditions of Contract of the Railways, which included an arbitration clause, governed the parties.
After the termination of the two contracts the respondent-contractor approached the Patna High Court by means of a writ petition challenging the terminations. =
Though a panel of arbitrators as per Clauses 64(3)(a)(ii) and (iii)
of the General Conditions of Contract was appointed as far back as in the
year 1996, till date the award(s) in respect of the disputes arising out of
either of the two contracts is yet to be passed. =
In the present case Clauses 64(3)(a)(ii) and (iii) of the General
Conditions of Contract do not prescribe any specific qualification of the
arbitrators that are to be appointed under the agreement except that they
should be railway officers.
As already noticed, even if the arbitration
agreement was to specifically provide for any particular qualification(s)
of an arbitrator the same would not denude the power of the Court acting
under Section 11(6), in an appropriate case to depart therefrom.
In Singh
Builders Syndicate (supra) pendency of arbitration proceedings for over a
decade was found by this Court to be a mockery of the process.=
In the
present case, admittedly the award in respect of disputes and differences
arising out of the contract No. CAO/CON/722 is yet to be passed.
Though
the appellant-Railway has in its pleadings made a feeble attempt to contend
that the process of arbitration arising out of the said Contract has been
finalized, no material, whatsoever, has been laid before the Court in
support thereof.
The arbitration proceedings to resolve the disputes and
differences arising out of Contract No. CAO/CON/738 has not even commenced.
A period of nearly two decades has elapsed since the contractor had raised
his claims for alleged wrongful termination of the two contracts.
The
situation is distressing and to say the least disturbing.
The power of
the Court under the Act has to be exercised to effectuate the remedy
provided thereunder and to facilitate the mechanism contemplated therein.
In a situation where the procedure and process under the Act has been
rendered futile, the power of the Court to depart from the agreed terms of
appointment of arbitrators must be acknowledged in the light of the several
decisions noticed by us.
We are, therefore, of the view that no
infirmity muchless any illegality or failure of justice can be said to be
occasioned by the order passed by the High Court so as to warrant any
interference.
We, therefore, unhesitatingly dismiss this appeal filed by
the appellant-railways.
However, in the facts of the case we do not deem
it appropriate to burden the appellant with any costs.
2014- Aug. Part - http://judis.nic.in/supremecourt/filename=41824
RANJAN GOGOI, M.Y. EQBAL
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6275 OF 2014
(Arising out of SLP (C) No. 20427 OF 2013)
NORTH EASTERN RAILWAY & ORS. ... APPELLANT (S)
VERSUS
TRIPPLE ENGINEERING WORKS ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The challenge in this appeal is to order dated 27.06.2012 of the
Patna High Court by which a former Chief Justice of the Sikkim High Court
had been appointed as the arbitrator to resolve the disputes and
differences between the parties to the present proceedings arising out of
two contracts bearing No. CAO/CON/722 dated 01.11.1993 and CAO/CON/738
dated 28.04.1994.
2. Both the contracts awarded to the respondent-contractor were
terminated on 7.11.1994. Admittedly, the General Conditions of Contract of
the Railways, which included an arbitration clause, governed the parties.
After the termination of the two contracts the respondent-contractor
approached the Patna High Court by means of a writ petition challenging the
terminations. The writ petition was dismissed, which dismissal was
challenged before this Court in SLP(C) No. 17189/1995. The said special
leave petition was also dismissed leaving parties to resolve the
differences in an appropriate proceeding i.e. a civil suit or by reference
to arbitration, as the case may be.
3. Though a panel of arbitrators as per Clauses 64(3)(a)(ii) and (iii)
of the General Conditions of Contract was appointed as far back as in the
year 1996, till date the award(s) in respect of the disputes arising out of
either of the two contracts is yet to be passed. According to the
appellant-railways, the proceedings of arbitration has been completed in
respect of the disputes arising out of Contract No. CAO/CON/722 dated
01.11.1993. Even if the said statement of the appellant-railways is to be
accepted, though no material has been laid in support thereof, what cannot
be denied is the fact that till date the award is yet to be passed.
Admittedly, the arbitration in respect of the contract No. CAO/CON/738
dated 28.04.1994 has not even commenced. This is on account of the fact
that in the year 2002 the North Eastern Railway, which had entered into the
contracts with the respondent-contractor, was bifurcated into North Eastern
Railway and East Central Railway. As the jurisdiction in respect of the
aforesaid contract No. CAO/CON/738 was to be exercised by the East Central
Railway it appears that the appellant has disclaimed all responsibility
with regard to holding of arbitration proceedings in respect of the said
contract and at the same time the East Central Railway has not responded in
any positive manner to the several demands for arbitration lodged by the
contractor.
Insofar as contract No. CAO/CON/722 is concerned, naturally, both the
parties have tried to lay the blame for the delay in the process of
arbitration on each other and the huge number of correspondence exchanged
in this regard and the frequent change of the arbitration panel on account
of exigencies of service of the panel members (retirement, transfer etc.)
has made it impossible to pinpoint the responsibility in this regard on any
one of the contracting parties. But what is glaring is the fact that
though the arbitration proceedings in respect of the said contract No.
CAO/CON/722 had commenced as far back as in the year 1996 the award is yet
to see the light of the day notwithstanding the assertions made by the
Union that the proceedings have been completed though as already noted, no
clinching material in this regard has been brought on record; not to speak
about the award of the arbitrators though such an award would have been the
natural consequence of the completion of arbitration proceedings. It is in
the totality of these facts that the High Court had thought it proper to
travel beyond the framework of Clauses 64(3)(a)(ii) and (iii) of the
General Conditions of Contract and appoint a retired Chief Justice as the
arbitrator.
4. The correctness of the said decision necessarily has to be judged in
the light of the facts and circumstances enumerated above. The necessary
legal discourse that would be required to be gone into to answer the
question as posed above could begin by extracting the provisions of Clauses
64(3)(a)(ii) and (iii) of the General Conditions of Contract.
“64(3)(a)(ii) In cases not covered by clause 64(3)(a)(i), the Arbitral
Tribunal shall consist of a panel of three Gazette Rly. Officers not below
JA grade, as the arbitrators. For this purpose, the Railway will send a
panel of more than 3 names of Gazetted Rly. Officers of one or more
departments, of the Rly. to the contractor who will be asked to suggest to
General Manager up to 2 names out of panel for appointment as contractor’s
nominee. The General Manager shall appoint at least one out of them as the
contractor’s nominee and will, also simultaneously appoint the balance
number of arbitrators either from the panel or from outside the panel, duly
indicating the ‘presiding arbitrator from amongst the 3 arbitrators so
appointed. While nominating the arbitrators it will be necessary to ensure
that one of them is from the Accounts department. An officer of Selection
Grade of the Accounts department shall be considered of equal status to the
officers in SA grade of departments of the Railways for the purpose of
appointment of arbitrators.
64(3)(a)(iii) – If one or more of the arbitrators appointed as above
refuses to act as arbitrator, withdraws from his office as arbitrator, or
vacates his/their office/offices or is/are unable or unwilling to perform
his functions as arbitrator for any reason whatsoever or dies or in the
opinion of the General Manager fails to act without undue delay, the
General Manager shall appoint new arbitrator/arbitrators to act in
his/their place in the same manner in which the earlier
arbitrator/arbitrators had been appointed. Such re-constituted Tribunal
may, at its discretion, proceed with the reference from the stage at which
it was left by the previous arbitrator(s)”.
From the provisions of the General Conditions of Contract it is clear
that the panel of arbitrators as per the agreement between the parties
necessarily has to be Gazetted Railway Officers; any vacancy in the panel
of arbitrators has to be filled up in the same manner in which the initial
panel is required to be constituted.
5. The “classical notion” that the High Court while exercising its power
under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter
for short ‘the Act’) must appoint the arbitrator as per the contract
between the parties saw a significant erosion in Ace Pipeline Contracts (P)
Ltd. Vs. Bharat Petroleum Corporation Ltd.[1] wherein this Court had taken
the view that though the contract between the parties must be adhered to,
deviations therefrom in exceptional circumstances would be permissible. A
more significant development had come in a decision that followed soon
thereafter in Union of India Vs. Bharat Battery Manufacturing Co. (P)
Ltd.[2] wherein following a three Judges Bench decision in Punj Lloyd Ltd.
Vs. Petronet MHB Ltd.[3] it was held that once an aggrieved party files an
application under Section 11(6) of the Act to the High Court, the opposite
party would lose its right of appointment of the arbitrator(s) as per the
terms of the contract. The implication that the Court would be free to
deviate from the terms of the contract is obvious. The apparent dichotomy
in ACE Pipeline (supra) and Bharat Battery Manufacturing Co. (P) Ltd.
(supra) was reconciled by a three Judges Bench of this Court in Northern
Railway Administration, Ministry of Railway, New Delhi Vs. Patel
Engineering Company Limited[4] where the jurisdiction of the High Court
under Section 11(6) of the Act was sought to be emphasized by taking into
account the expression “to take the necessary measure” appearing in sub-
section (6) of Section 11 and by further laying down that the said
expression has to be read alongwith the requirement of sub-section (8) of
Section 11 of the Act. The position was further clarified in Indian Oil
Corporation Limited and Others Vs. Raja Transport Private Limited[5].
Paragraph 48 of the report wherein the scope of Section 11 of the Act was
summarized may be quoted by reproducing sub-paragraphs (vi) and (vii)
herein below.
“(vi) The Chief Justice or his designate while exercising power under sub-
section (6) of Section 11 shall endeavour to give effect to the appointment
procedure prescribed in the arbitration clause
(vii) If circumstances exist, giving rise to justifiable doubts as to the
independence and impartiality of the person nominated, or if other
circumstances warrant appointment of an independent arbitrator by ignoring
the procedure prescribed, the Chief Justice or his designate may, for
reasons to be recorded ignore the designated arbitrator and appoint someone
else.”
6. The above discussion will not be complete without reference to the
view of this Court expressed in Union of India Vs. Singh Builders
Syndicate[6] wherein the appointment of a retired Judge contrary to the
agreement requiring appointment of specified officers was held to be valid
on the ground that the arbitration proceedings had not concluded for over a
decade making a mockery of the process. In fact, in paragraph 25 of the
report in Singh Builders Syndicate (supra) this Court had suggested that
the government, statutory authorities and government companies should
consider phasing out arbitration clauses providing for appointment of
serving officers and encourage professionalism in arbitration.
7. A pronouncement of late in Deep Trading Company Vs. Indian Oil
Corporation and Others[7] followed the legal position laid down in Punj
Lloyd Ltd. (supra) which in turn had followed a two Judges Bench decision
in Datar Switchgears Ltd. Vs. Tata Finance Ltd.[8]. The theory of
forfeiture of the rights of a party under the agreement to appoint its
arbitrator once the proceedings under Section 11(6) of the Act had
commenced came to be even more formally embedded in Deep Trading Company
(supra) subject, of course, to the provisions of Section 11(8), which
provision in any event, had been held in Northern Railway Administration
(supra) not to be mandatory, but only embodying a requirement of keeping
the same in view at the time of exercise of jurisdiction under Section
11(6) of the Act.
8. In the present case Clauses 64(3)(a)(ii) and (iii) of the General
Conditions of Contract do not prescribe any specific qualification of the
arbitrators that are to be appointed under the agreement except that they
should be railway officers. As already noticed, even if the arbitration
agreement was to specifically provide for any particular qualification(s)
of an arbitrator the same would not denude the power of the Court acting
under Section 11(6), in an appropriate case to depart therefrom. In Singh
Builders Syndicate (supra) pendency of arbitration proceedings for over a
decade was found by this Court to be a mockery of the process. In the
present case, admittedly the award in respect of disputes and differences
arising out of the contract No. CAO/CON/722 is yet to be passed. Though
the appellant-Railway has in its pleadings made a feeble attempt to contend
that the process of arbitration arising out of the said Contract has been
finalized, no material, whatsoever, has been laid before the Court in
support thereof. The arbitration proceedings to resolve the disputes and
differences arising out of Contract No. CAO/CON/738 has not even commenced.
A period of nearly two decades has elapsed since the contractor had raised
his claims for alleged wrongful termination of the two contracts. The
situation is distressing and to say the least disturbing. The power of
the Court under the Act has to be exercised to effectuate the remedy
provided thereunder and to facilitate the mechanism contemplated therein.
In a situation where the procedure and process under the Act has been
rendered futile, the power of the Court to depart from the agreed terms of
appointment of arbitrators must be acknowledged in the light of the several
decisions noticed by us. We are, therefore, of the view that no
infirmity muchless any illegality or failure of justice can be said to be
occasioned by the order passed by the High Court so as to warrant any
interference. We, therefore, unhesitatingly dismiss this appeal filed by
the appellant-railways. However, in the facts of the case we do not deem
it appropriate to burden the appellant with any costs.
…....…………………………J.
[RANJAN GOGOI]
.…....…………………………J.
[M. Y. EQBAL]
NEW DELHI,
AUGUST 13, 2014.
-----------------------
[1] (2007) 5 SCC 304
[2] (2007) 7 SCC 684
[3] (2006) 2 SCC 638
[4] (2008) 10 SCC 240
[5] (2009) 8 SCC 520
[6] (2009) 4 SCC 523
[7] (2013) 4 SCC 35
[8] (2000) 8 SCC 151
-----------------------
12
The power of the Court under the Act has to be exercised to effectuate the remedy
provided there under and to facilitate the mechanism contemplated therein. In a situation where the procedure and process under the Act has been rendered futile, the power of the Court to depart from the agreed terms of appointment of arbitrators must be acknowledged in the light of the several decisions noticed by us. We are, therefore, of the view that no infirmity muchless any illegality or failure of justice can be said to be occasioned by the order passed by the High Court so as to warrant any interference. We, therefore, unhesitatingly dismiss this appeal filed by the appellant-railways. =
Admittedly, the General Conditions of Contract of the Railways, which included an arbitration clause, governed the parties.
After the termination of the two contracts the respondent-contractor approached the Patna High Court by means of a writ petition challenging the terminations. =
Though a panel of arbitrators as per Clauses 64(3)(a)(ii) and (iii)
of the General Conditions of Contract was appointed as far back as in the
year 1996, till date the award(s) in respect of the disputes arising out of
either of the two contracts is yet to be passed. =
In the present case Clauses 64(3)(a)(ii) and (iii) of the General
Conditions of Contract do not prescribe any specific qualification of the
arbitrators that are to be appointed under the agreement except that they
should be railway officers.
As already noticed, even if the arbitration
agreement was to specifically provide for any particular qualification(s)
of an arbitrator the same would not denude the power of the Court acting
under Section 11(6), in an appropriate case to depart therefrom.
In Singh
Builders Syndicate (supra) pendency of arbitration proceedings for over a
decade was found by this Court to be a mockery of the process.=
In the
present case, admittedly the award in respect of disputes and differences
arising out of the contract No. CAO/CON/722 is yet to be passed.
Though
the appellant-Railway has in its pleadings made a feeble attempt to contend
that the process of arbitration arising out of the said Contract has been
finalized, no material, whatsoever, has been laid before the Court in
support thereof.
The arbitration proceedings to resolve the disputes and
differences arising out of Contract No. CAO/CON/738 has not even commenced.
A period of nearly two decades has elapsed since the contractor had raised
his claims for alleged wrongful termination of the two contracts.
The
situation is distressing and to say the least disturbing.
The power of
the Court under the Act has to be exercised to effectuate the remedy
provided thereunder and to facilitate the mechanism contemplated therein.
In a situation where the procedure and process under the Act has been
rendered futile, the power of the Court to depart from the agreed terms of
appointment of arbitrators must be acknowledged in the light of the several
decisions noticed by us.
We are, therefore, of the view that no
infirmity muchless any illegality or failure of justice can be said to be
occasioned by the order passed by the High Court so as to warrant any
interference.
We, therefore, unhesitatingly dismiss this appeal filed by
the appellant-railways.
However, in the facts of the case we do not deem
it appropriate to burden the appellant with any costs.
2014- Aug. Part - http://judis.nic.in/supremecourt/filename=41824
RANJAN GOGOI, M.Y. EQBAL
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6275 OF 2014
(Arising out of SLP (C) No. 20427 OF 2013)
NORTH EASTERN RAILWAY & ORS. ... APPELLANT (S)
VERSUS
TRIPPLE ENGINEERING WORKS ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The challenge in this appeal is to order dated 27.06.2012 of the
Patna High Court by which a former Chief Justice of the Sikkim High Court
had been appointed as the arbitrator to resolve the disputes and
differences between the parties to the present proceedings arising out of
two contracts bearing No. CAO/CON/722 dated 01.11.1993 and CAO/CON/738
dated 28.04.1994.
2. Both the contracts awarded to the respondent-contractor were
terminated on 7.11.1994. Admittedly, the General Conditions of Contract of
the Railways, which included an arbitration clause, governed the parties.
After the termination of the two contracts the respondent-contractor
approached the Patna High Court by means of a writ petition challenging the
terminations. The writ petition was dismissed, which dismissal was
challenged before this Court in SLP(C) No. 17189/1995. The said special
leave petition was also dismissed leaving parties to resolve the
differences in an appropriate proceeding i.e. a civil suit or by reference
to arbitration, as the case may be.
3. Though a panel of arbitrators as per Clauses 64(3)(a)(ii) and (iii)
of the General Conditions of Contract was appointed as far back as in the
year 1996, till date the award(s) in respect of the disputes arising out of
either of the two contracts is yet to be passed. According to the
appellant-railways, the proceedings of arbitration has been completed in
respect of the disputes arising out of Contract No. CAO/CON/722 dated
01.11.1993. Even if the said statement of the appellant-railways is to be
accepted, though no material has been laid in support thereof, what cannot
be denied is the fact that till date the award is yet to be passed.
Admittedly, the arbitration in respect of the contract No. CAO/CON/738
dated 28.04.1994 has not even commenced. This is on account of the fact
that in the year 2002 the North Eastern Railway, which had entered into the
contracts with the respondent-contractor, was bifurcated into North Eastern
Railway and East Central Railway. As the jurisdiction in respect of the
aforesaid contract No. CAO/CON/738 was to be exercised by the East Central
Railway it appears that the appellant has disclaimed all responsibility
with regard to holding of arbitration proceedings in respect of the said
contract and at the same time the East Central Railway has not responded in
any positive manner to the several demands for arbitration lodged by the
contractor.
Insofar as contract No. CAO/CON/722 is concerned, naturally, both the
parties have tried to lay the blame for the delay in the process of
arbitration on each other and the huge number of correspondence exchanged
in this regard and the frequent change of the arbitration panel on account
of exigencies of service of the panel members (retirement, transfer etc.)
has made it impossible to pinpoint the responsibility in this regard on any
one of the contracting parties. But what is glaring is the fact that
though the arbitration proceedings in respect of the said contract No.
CAO/CON/722 had commenced as far back as in the year 1996 the award is yet
to see the light of the day notwithstanding the assertions made by the
Union that the proceedings have been completed though as already noted, no
clinching material in this regard has been brought on record; not to speak
about the award of the arbitrators though such an award would have been the
natural consequence of the completion of arbitration proceedings. It is in
the totality of these facts that the High Court had thought it proper to
travel beyond the framework of Clauses 64(3)(a)(ii) and (iii) of the
General Conditions of Contract and appoint a retired Chief Justice as the
arbitrator.
4. The correctness of the said decision necessarily has to be judged in
the light of the facts and circumstances enumerated above. The necessary
legal discourse that would be required to be gone into to answer the
question as posed above could begin by extracting the provisions of Clauses
64(3)(a)(ii) and (iii) of the General Conditions of Contract.
“64(3)(a)(ii) In cases not covered by clause 64(3)(a)(i), the Arbitral
Tribunal shall consist of a panel of three Gazette Rly. Officers not below
JA grade, as the arbitrators. For this purpose, the Railway will send a
panel of more than 3 names of Gazetted Rly. Officers of one or more
departments, of the Rly. to the contractor who will be asked to suggest to
General Manager up to 2 names out of panel for appointment as contractor’s
nominee. The General Manager shall appoint at least one out of them as the
contractor’s nominee and will, also simultaneously appoint the balance
number of arbitrators either from the panel or from outside the panel, duly
indicating the ‘presiding arbitrator from amongst the 3 arbitrators so
appointed. While nominating the arbitrators it will be necessary to ensure
that one of them is from the Accounts department. An officer of Selection
Grade of the Accounts department shall be considered of equal status to the
officers in SA grade of departments of the Railways for the purpose of
appointment of arbitrators.
64(3)(a)(iii) – If one or more of the arbitrators appointed as above
refuses to act as arbitrator, withdraws from his office as arbitrator, or
vacates his/their office/offices or is/are unable or unwilling to perform
his functions as arbitrator for any reason whatsoever or dies or in the
opinion of the General Manager fails to act without undue delay, the
General Manager shall appoint new arbitrator/arbitrators to act in
his/their place in the same manner in which the earlier
arbitrator/arbitrators had been appointed. Such re-constituted Tribunal
may, at its discretion, proceed with the reference from the stage at which
it was left by the previous arbitrator(s)”.
From the provisions of the General Conditions of Contract it is clear
that the panel of arbitrators as per the agreement between the parties
necessarily has to be Gazetted Railway Officers; any vacancy in the panel
of arbitrators has to be filled up in the same manner in which the initial
panel is required to be constituted.
5. The “classical notion” that the High Court while exercising its power
under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter
for short ‘the Act’) must appoint the arbitrator as per the contract
between the parties saw a significant erosion in Ace Pipeline Contracts (P)
Ltd. Vs. Bharat Petroleum Corporation Ltd.[1] wherein this Court had taken
the view that though the contract between the parties must be adhered to,
deviations therefrom in exceptional circumstances would be permissible. A
more significant development had come in a decision that followed soon
thereafter in Union of India Vs. Bharat Battery Manufacturing Co. (P)
Ltd.[2] wherein following a three Judges Bench decision in Punj Lloyd Ltd.
Vs. Petronet MHB Ltd.[3] it was held that once an aggrieved party files an
application under Section 11(6) of the Act to the High Court, the opposite
party would lose its right of appointment of the arbitrator(s) as per the
terms of the contract. The implication that the Court would be free to
deviate from the terms of the contract is obvious. The apparent dichotomy
in ACE Pipeline (supra) and Bharat Battery Manufacturing Co. (P) Ltd.
(supra) was reconciled by a three Judges Bench of this Court in Northern
Railway Administration, Ministry of Railway, New Delhi Vs. Patel
Engineering Company Limited[4] where the jurisdiction of the High Court
under Section 11(6) of the Act was sought to be emphasized by taking into
account the expression “to take the necessary measure” appearing in sub-
section (6) of Section 11 and by further laying down that the said
expression has to be read alongwith the requirement of sub-section (8) of
Section 11 of the Act. The position was further clarified in Indian Oil
Corporation Limited and Others Vs. Raja Transport Private Limited[5].
Paragraph 48 of the report wherein the scope of Section 11 of the Act was
summarized may be quoted by reproducing sub-paragraphs (vi) and (vii)
herein below.
“(vi) The Chief Justice or his designate while exercising power under sub-
section (6) of Section 11 shall endeavour to give effect to the appointment
procedure prescribed in the arbitration clause
(vii) If circumstances exist, giving rise to justifiable doubts as to the
independence and impartiality of the person nominated, or if other
circumstances warrant appointment of an independent arbitrator by ignoring
the procedure prescribed, the Chief Justice or his designate may, for
reasons to be recorded ignore the designated arbitrator and appoint someone
else.”
6. The above discussion will not be complete without reference to the
view of this Court expressed in Union of India Vs. Singh Builders
Syndicate[6] wherein the appointment of a retired Judge contrary to the
agreement requiring appointment of specified officers was held to be valid
on the ground that the arbitration proceedings had not concluded for over a
decade making a mockery of the process. In fact, in paragraph 25 of the
report in Singh Builders Syndicate (supra) this Court had suggested that
the government, statutory authorities and government companies should
consider phasing out arbitration clauses providing for appointment of
serving officers and encourage professionalism in arbitration.
7. A pronouncement of late in Deep Trading Company Vs. Indian Oil
Corporation and Others[7] followed the legal position laid down in Punj
Lloyd Ltd. (supra) which in turn had followed a two Judges Bench decision
in Datar Switchgears Ltd. Vs. Tata Finance Ltd.[8]. The theory of
forfeiture of the rights of a party under the agreement to appoint its
arbitrator once the proceedings under Section 11(6) of the Act had
commenced came to be even more formally embedded in Deep Trading Company
(supra) subject, of course, to the provisions of Section 11(8), which
provision in any event, had been held in Northern Railway Administration
(supra) not to be mandatory, but only embodying a requirement of keeping
the same in view at the time of exercise of jurisdiction under Section
11(6) of the Act.
8. In the present case Clauses 64(3)(a)(ii) and (iii) of the General
Conditions of Contract do not prescribe any specific qualification of the
arbitrators that are to be appointed under the agreement except that they
should be railway officers. As already noticed, even if the arbitration
agreement was to specifically provide for any particular qualification(s)
of an arbitrator the same would not denude the power of the Court acting
under Section 11(6), in an appropriate case to depart therefrom. In Singh
Builders Syndicate (supra) pendency of arbitration proceedings for over a
decade was found by this Court to be a mockery of the process. In the
present case, admittedly the award in respect of disputes and differences
arising out of the contract No. CAO/CON/722 is yet to be passed. Though
the appellant-Railway has in its pleadings made a feeble attempt to contend
that the process of arbitration arising out of the said Contract has been
finalized, no material, whatsoever, has been laid before the Court in
support thereof. The arbitration proceedings to resolve the disputes and
differences arising out of Contract No. CAO/CON/738 has not even commenced.
A period of nearly two decades has elapsed since the contractor had raised
his claims for alleged wrongful termination of the two contracts. The
situation is distressing and to say the least disturbing. The power of
the Court under the Act has to be exercised to effectuate the remedy
provided thereunder and to facilitate the mechanism contemplated therein.
In a situation where the procedure and process under the Act has been
rendered futile, the power of the Court to depart from the agreed terms of
appointment of arbitrators must be acknowledged in the light of the several
decisions noticed by us. We are, therefore, of the view that no
infirmity muchless any illegality or failure of justice can be said to be
occasioned by the order passed by the High Court so as to warrant any
interference. We, therefore, unhesitatingly dismiss this appeal filed by
the appellant-railways. However, in the facts of the case we do not deem
it appropriate to burden the appellant with any costs.
…....…………………………J.
[RANJAN GOGOI]
.…....…………………………J.
[M. Y. EQBAL]
NEW DELHI,
AUGUST 13, 2014.
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[1] (2007) 5 SCC 304
[2] (2007) 7 SCC 684
[3] (2006) 2 SCC 638
[4] (2008) 10 SCC 240
[5] (2009) 8 SCC 520
[6] (2009) 4 SCC 523
[7] (2013) 4 SCC 35
[8] (2000) 8 SCC 151
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12
