# M/s P.N. Garg, Engg. & Contractors, Jhansi & Anr v. Chief Engineer, Bhopal Zone, Sultania Infantry Lines, Bhopal & Ors. Opp. Parties

- **Citation:** (2021) 11 ILRA 345
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-16
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-p-n-garg-engg-contractors-jhansi-anr-v-chief-engineer-bhopal-zone-sultania-46541
- **Pages:** 10

## Headnote

346 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Civil Law - The Arbitration and Conciliation
Act, 1961 - Sections 11,14,15, 32 & 34 -
Appointment of an independent Arbitrator -
Contract - Award - power under Section 34 (4)
of the Act can be exercised so long the arbitral
award is not set aside - No power has been
invested in the Court to remand the matter to
the arbitral tribunal except to adjourn the
proceedings for the limited purpose mentioned
in sub-section (4) of Section 34 of the Act -
consequent to disposal of the main proceedings
under Section 34 of the Act by the Court, it
would become functus officio - power to
modify, vary or remit the award does not exist
under Section 34 of the Act.(Para -12,13 )

Parties entered into a contract - dispute under clause
70 of general conditions - provides for arbitration -
final award - challenged before District Judge -
application under Section 34 of the Act - setting
aside award - Court allowed application - set aside
the award - remitted matter back to Arbitrator - to
reconsider all issues raised before the Court - to pass
afresh award.(Para -3,4 )

HELD:-Order passed by the Court on 16.09.2019
under Section 34 of the Act remitting the matter back
to the Arbitrator to reconsider all the issues would be
beyond the statutory mandate conferred on the Court
and is thus without jurisdiction. No failure on part of
the opposite parties to act or discharge a function
which would entitle the applicants to invoke the
powers conferred by sub-sections (4), (5) and (6) of
Section 11 of the Act, and which would render the
present application maintainable. (Para - 14,21)

Application dismissed. (E-7)

List of Cases cited:-

## Text

11 All. M/s P.N. Garg, Engg. & Contractors, Jhansi & Anr. Vs. Chief Engineer, Bhopal Zone, Sultania
 Infantry Lines, Bhopal & Ors.
345
Family Trust & Ors. AIR 1996 SC 2202; Ram
Chandra Singh Vs. Savitri Devi & Ors. (2003) 8
SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002
SC 33; Ram Preeti Yadav Vs. U.P. Board of
High School & Intermediate Education AIR
2003 SC 4628; and Ashok Leyland Ltd. Vs. State
of Tamil Nadu & Anr. AIR 2004 SC 2836).

35. In kinch Vs. Walcott (1929) AC
482:1929 AII ER Rep 720 (PC) it has been held
that

"....mere constructive fraud is not, at all
events after long delay, sufficient but such a
judgment will not be set aside upon mere proof
that the judgment was obtained y perjury."

Thus, detection/discovery of constructive
fraud at a much belated stage may not be sufficient
to set aside the judgment procured by perjury.

36. From the above, it is evident that
even in judicial proceedings, once a fraud is
proved, all advantages gained by playing fraud
can be taken away. In such an eventuality the
questions of non-executing of the statutory
remedies or statutory bars like doctrine of res
judicata are not attracted. Suppression of any
material fact/document amounts to a fraud on the
court. Every court has an inherent power to recall
its own order obtained by fraud as the order so
obtained is non est."

18. Thus, in view of the above legal position
and the factual position emerging in the present
case, the petitioner having obtained the fair price
shop license by concealing material fact, has
virtually played fraud and would not be entitled to
any benefit coming out of the same. The
petitioner's fair price shop license has rightly been
cancelled. The plea of the petitioner that he was
ignorant of rules would not be acceptable as the
legal position, as has rightly been argued by
learned counsel for the resopndent, is that nobody
can take the plea of ignorance of law or the rules.

19. The further plea of the petitioner that a
case was registered by the State and the State
found it to be not appropriate and had proceeded
to lift the same, would not change the situation
either. The fact remains that the petitioner had
obtained the license of the fair price shop and on
the said date the charge sheet was pending
against him and it would be sufficient enough to
hold that the fair price shop license had been
obtained by such means which would not have
the approval of law.

20. However, this Court at the same time
holds that since the crimianl case against the
petitioner has been lifted by the State
prosecution and the Chief Judicial Magistrate
has discharged him under its order dated
12.03.2017 in criminal case arising out of case
crime no. 748 of 2007, it is hereby provided that
in future the said crimianl case will not come in
the way of petitioner in applying for fair price
shop license, if any advertisement is issued and
the applications are invited.

21. Subject to the aforesaid observations,
the writ petition fails and is accordingly
dismissed.
----------

(2021)12ILR A345
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2021

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Arbitration & Concill. Appl. U/S 11(4) No. 92 of 2021

M/s P.N. Garg, Engg. & Contractors, Jhansi &
Anr. ...Applicants
Versus
Chief Engineer, Bhopal Zone, Sultania Infantry
Lines, Bhopal & Ors. ...Opp. Parties.

Counsel for the Applicants:
Ms. Aarushi Khare

Counsel for the Opp. Parties:
--
346 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Civil Law - The Arbitration and Conciliation
Act, 1961 - Sections 11,14,15, 32 & 34 -
Appointment of an independent Arbitrator -
Contract - Award - power under Section 34 (4)
of the Act can be exercised so long the arbitral
award is not set aside - No power has been
invested in the Court to remand the matter to
the arbitral tribunal except to adjourn the
proceedings for the limited purpose mentioned
in sub-section (4) of Section 34 of the Act -
consequent to disposal of the main proceedings
under Section 34 of the Act by the Court, it
would become functus officio - power to
modify, vary or remit the award does not exist
under Section 34 of the Act.(Para -12,13 )

Parties entered into a contract - dispute under clause
70 of general conditions - provides for arbitration -
final award - challenged before District Judge -
application under Section 34 of the Act - setting
aside award - Court allowed application - set aside
the award - remitted matter back to Arbitrator - to
reconsider all issues raised before the Court - to pass
afresh award.(Para -3,4 )

HELD:-Order passed by the Court on 16.09.2019
under Section 34 of the Act remitting the matter back
to the Arbitrator to reconsider all the issues would be
beyond the statutory mandate conferred on the Court
and is thus without jurisdiction. No failure on part of
the opposite parties to act or discharge a function
which would entitle the applicants to invoke the
powers conferred by sub-sections (4), (5) and (6) of
Section 11 of the Act, and which would render the
present application maintainable. (Para - 14,21)

Application dismissed. (E-7)

List of Cases cited:-

1. McDermott International Inc. Vs Burn Standard
Company Ltd. & ors.,(2006) 11 SCC 181

2. Kinnari Mullick & anr. Vs Ghanshyam Das Damani,
(2018) 11 SCC 328

3. Project Director, National Highways Vs M. Hakeem
& anr., 2021 SCC Online SC 473

4. Puri Construction P. Ltd. Vs Larsen & Tubro Ltd.,
2015 SCC Online Del. 9126

5. S.K. & Associates Vs IFFCO & ors., (2019) SCC
Online All 5390

(Delivered by Hon'ble Jayant Banerji, J.)

1. Heard Ms. Aarushi Khare, learned
counsel for the applicants and perused the
record.

2. This application has been filed praying
for appointment of an independent Arbitrator
under Section 11 of the Arbitration and
Conciliation Act, 19961. The opposite parties
are as follows:- (I) Chief Engineer, Bhopal
Zone, Sultania Infantry Lines, Bhopal-462001,
(II) Engineer-in-Chief, Branch Army Head
Quarter, New Delhi, (III) Commander Works
Engineer, Military Engineer Services, Jhansi,
and, (IV) Garrison Engineer, Military Engineer
Services, Jhansi-284001, U.P.

3. The applicants and the opposite parties
entered into a contract under a Contract
Agreement No.CEJZ/JHA-05. Since a dispute
arose between the parties, under clause 70 of the
general conditions of the aforesaid agreement
which provides for arbitration, the competent
authority-opposite party no.2 appointed one Mr.
Baljit Singh as the sole Arbitrator under the
terms of the arbitration agreement, who made
the final award on 25.02.2010.

4. The aforesaid award was challenged
before the District Judge, Jhansi by means of an
application under Section 34 of the Act
(Arbitration Misc. Case No.20/2010) for setting
aside the award. By an order dated 16.09.2019,
the Court allowed the application, set aside the
award dated 25.02.2010, and remitted the matter
back to the Arbitrator to reconsider all the issues
raised before the Court in light of the terms of
the contract as well as the issue regarding
extension of period for completion of work of
IIIrd Phase and to pass the award afresh.
11 All. M/s P.N. Garg, Engg. & Contractors, Jhansi & Anr. Vs. Chief Engineer, Bhopal Zone, Sultania
 Infantry Lines, Bhopal & Ors.
347

5. However, thereafter, the Arbitrator Mr.
Baljit Singh resigned and withdrew from the
aforesaid arbitration proceedings citing his
ineligibility to continue as Arbitrator as he had
retired, and only a serving officer could be an
Arbitrator as per the agreement.

6. It is contended by the learned counsel
for
the
applicants
that
despite
repeated
reminders to the opposite parties, no substitute
Arbitrator is being appointed by them and,
therefore, this application has been filed.

7. When the matter was listed on
23.09.2021,
the
learned
counsel for
the
applicants sought adjournment to address the
Court on the issue of maintainability of the
application. Learned counsel has thus made her
submissions on the issue of maintainability.

8. A query was made by the Court to the
learned counsel for the applicants that whether
the Court exercising jurisdiction under Section
34 of the Act, had power to remand the matter to
the Arbitrator after setting aside the arbitral
award dated 25.02.2010, and if not, whether the
present application would be maintainable. The
learned counsel for the applicants referred to
Sections 14 and 15 of the Act, and contended
that since the matter has been remanded, and
since the Arbitrator withdrew from his office, his
mandate stood terminated, and, therefore, under
Section 15(2) of the Act, a substitute Arbitrator
is required to be appointed. It is, therefore,
contended that under the facts of the case, since
the award has been set aside, an Arbitrator
would anyway be required to be appointed and
therefore, the present application would be
maintainable. Learned counsel has referred to
the judgement of the Supreme Court in
McDermott
International
Inc.
v.
Burn
Standard Company Ltd. and others2.

9. On perusal of the order passed by the
court below on 16.09.2019 on the application
filed by the applicants under Section 34 of the
Act, it is evident that the award passed by the
Arbitrator on 25.02.2010 was set aside and the
matter was remitted back to the Arbitrator to
reconsider all the issues raised before the court
in light of the terms of the contract as well as the
issue
regarding
extension
of
period
for
completion of work of Phase-III and to pass the
award afresh. The relevant extract of the order of
the Court below is quoted :-

"12. A perusal of Impugned award
reveals that the Arbitrator has rejected the claim
of applicant/firm for want of extension of period
for completion of work for III phase, while the
applicant/firm has vehemently submitted that
extension of time was recommended by Chief
Engineer, Jabalpur, who was the competent
authority under the contract to extend the period
for completion of any work, which itself
amounts to extension of period. Admittedly, the
applicant/firm has completed the work of III
phase as per the agreement. The dispute is only
with regard to extension of period for
completion of work of III phase. When the
applicant/firm has completed the work of III
phase without any interruption from the side of
opposite parties, though without extension of
period as alleged by the opposite parties, but it
would draw adverse presumption against the
opposite parties that they were conceded to the
request of applicant/firm for extension of period,
otherwise they would have stopped the work of
III phase.

The Arbitrator, while passing the
impugned award, has not given a detailed
finding on this fact; rather rejected the claim of
the applicant/firm for want of extension of
period for completion of work. Further, the
Arbitrator has also not taken into consideration
the terms of contract for deduction of sales tax
@ 4% instead of 1% from the final bill. He also
failed in consider the applicability of VAT,
which was allegedly enforced after completion
of work on 27.09.1993. The Arbitrator has
348 INDIAN LAW REPORTS ALLAHABAD SERIES
committed gross error of law in rejecting the
claim of the applicant without considering these
legal issues in the light of terms of contract.
Hence, there appears some substance in the
argument
of
learned
counsel
for
the
applicant/firm
that
matter
requires
reconsideration in the light of terms of contract.

Thus, in view of the above discussion,
it is proved that award suffers from illegality and
infirmity, as it has been passed without
considering
the
points
being
raised
by
applicant/firm at the time of hearing before
Arbitrator. Hence, the impugned award requires
reconsideration in terms of the contract.

ORDER

Application 3B for setting aside the
award dated 25.02.2010 is allowed with no order
as to cost. The award dated 25.02.2010 is hereby
set aside. The matter is remitted back to the
Arbitrator to reconsider all the issues being
raised before this Court in the light of terms of
contract as well as the issue regarding extension
of period for completion of work of III phase
and to pass the award afresh, as early as
possible. Let the record of Arbitrator, if any, be
sent back along with a copy of this judgment
forthwith."

10. Thus the Court below, while affirming
that an award by the arbitrator cannot be
modified, set aside the award, and proceeded to
hold that the matter requires reconsideration in
light of the terms of the contract, and remitted
the case to the arbitrator.

11. A three Judge Bench of the Supreme
Court in the case of Kinnari Mullick and
Another vs. Ghanshyam Das Damani3 has
held that no power has been invested by
Parliament in the Court to remand the matter to
the Arbitral Tribunal except to adjourn the
proceedings for the limited purpose mentioned
in sub-section (4) of Section 34 of the Act. It
was further held that the limited discretion
available to the Court under Section 34(4) of the
Act can be exercised only upon a written
application made in that behalf by a party to the
arbitration proceedings. The relevant paragraphs
of the judgment of Kinnari Mullick and
Another (supra) are quoted below:-

"6. Being dissatisfied with the interim
award dated 27-8-2010 and final award dated
18-6-2013 passed by the Arbitral Tribunal, the
appellants filed an application under Section 34
of the Act, for setting aside of the said awards.
The learned Single Judge was pleased to allow
the said application on the finding that the
impugned award did not disclose any reason in
support thereof. The impugned award was
accordingly set aside and the parties were left to
pursue their remedies in accordance with law.
The relevant portion of the decision of the
learned Single Judge reads thus: (Kinnari case,
SCC OnLine Cal para 9)

"9. Since the present award is
completely lacking in reasons and is littered with
the unacceptable expressions like "I feel that the
claim is justified", "I find no basis" and the like
which cannot be supplement for reasons that the
statute demands, AP No. 1074 of 2013 is
allowed by setting aside the award dated 18-62013. The parties are left free to pursue their
remedies in accordance with law."

7.
Against
the
aforementioned
decision, the respondent preferred an appeal
before the Division Bench of the High Court of
Calcutta. The appellants also filed a crossobjection in respect of the adverse findings
recorded by the learned Single Judge against
them. The cross-objection bearing APO No. 223
of 2014 and APOT No. 318 of 2014 were heard
and decided together by the Division Bench vide
the impugned judgment dated 13-8-2014. The
Division Bench affirmed the findings and
conclusion recorded by the learned Single Judge
that the award did not contain any reason
whatsoever and thus rejected the appeal
11 All. M/s P.N. Garg, Engg. & Contractors, Jhansi & Anr. Vs. Chief Engineer, Bhopal Zone, Sultania
 Infantry Lines, Bhopal & Ors.
349
preferred by the respondent, in the following
words: (Ghanshyam Das case, SCC OnLine Cal)

"We
have
considered
the
rival
contentions. Section 31 is clear that it would
require the Tribunal to assign reason. The award
would suffer from such lacunae. We would not
be in a position to agree with Mr Sharma when
he would contend, it was reasoned, but reasons
might have been insufficient.

The learned Judge observed:

''The award does not indicate a line or
sentence of reasons and notwithstanding the
petitioners herein, having pulled out of the
reference and not urging their counter-statement
or any defence to the claim, it was still
incumbent on the arbitrator to indicate the
grounds on which the respondents were entitled
to succeed.'

We fully endorse what his Lordship
would say as quoted (supra). Hence, the appeal
fails on such count."

(emphasis in original)

8. While
considering
the
crossobjection filed by the appellants, the Division
Bench negatived the ground urged before it
about the inappropriate and illegal constitution
of the Arbitral Tribunal. As a result, the crossobjection filed by the appellants was also
rejected. Having decided as above, the Division
Bench suo motu decided to relegate the parties
before the Arbitral Tribunal by sending the
award back with a direction to assign reasons in
support of its award. It will be useful to
reproduce the observations of the Division
Bench in this regard. The same reads thus:
(Ghanshyam Das case, SCC OnLine Cal)

"On the cross-objection we would,
however, agree with Mr Sharma when he would
draw our attention to Section 13. The learned
Judge, in our view, rightly rejected the
contention of the respondents. The challenge
procedure as spelt out in Section 13 would refer
to constitution of the Tribunal as well. Section 4
would clearly provide, if a party knowing his
right does not take any step that would debar
him to object at a later stage as if he shall be
deemed to have waived his right to object.

... Section 34 would empower the
Court to remit the award to the arbitrator, at a
stage when the award was under challenge, to
eliminate the ground for setting aside of the
arbitral award. Applying such provision we send
the award back to the arbitrator with a direction,
he must assign reason to support his award.
However, we wish to give the arbitrator a free
hand. If he feels, further hearing to be given to
the parties, he may do so and upon hearing, he
may publish his award in accordance with law
adhering to the norms and procedures laid down
under the said 1996 Act without being
influenced by the award that the learned Judge
already set aside.

The appeal is dismissed without any
order as to costs."

(emphasis supplied)

................

13. We have heard the learned counsel
for the parties. At the outset, we may note that if
the plea taken by the appellants in relation to the
concluding part of the impugned judgment--of
sending the award back to the Arbitral Tribunal
for recording reasons--was to be accepted, we
may not be required to dilate on any other
argument. Inasmuch as the learned Single Judge
allowed the application under Section 34 of the
Act for setting aside of the award preferred by
the appellants; and the Division Bench has
already affirmed the conclusion recorded by the
learned Single Judge while dismissing the
appeal preferred by the respondent. Thus, the
award has been set aside on that count. The
respondent has not challenged that part of the
impugned judgment and has allowed it to
become final.

14. In this backdrop, the question
which arises is: whether the highlighted portion
in the operative part of the impugned judgment
of the Division Bench can be sustained in law?
For that, we may advert to Section 34(4) of the
350 INDIAN LAW REPORTS ALLAHABAD SERIES
Act which is the repository of power invested in
the Court. The same reads thus:

"34. (4) On receipt of an application
under sub-section (1), the court may, where it is
appropriate and it is so requested by a party,
adjourn the proceedings for a period of time
determined by it in order to give the Arbitral
Tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the
opinion of Arbitral Tribunal will eliminate the
grounds for setting aside the arbitral award."

15. On a bare reading of this provision,
it is amply clear that the Court can defer the
hearing of the application filed under Section 34
for setting aside the award on a written request
made by a party to the arbitration proceedings to
facilitate the Arbitral Tribunal by resuming the
arbitral proceedings or to take such other action
as in the opinion of the Arbitral Tribunal will
eliminate the grounds for setting aside the
arbitral award. The quintessence for exercising
power under this provision is that the arbitral
award has not been set aside. Further, the
challenge to the said award has been set up
under Section 34 about the deficiencies in the
arbitral award which may be curable by allowing
the Arbitral Tribunal to take such measures
which can eliminate the grounds for setting aside
the arbitral award. No power has been invested
by Parliament in the Court to remand the matter
to the Arbitral Tribunal except to adjourn the
proceedings for the limited purpose mentioned
in sub-section (4) of Section 34. This legal
position has been expounded inMcDermott
International Inc. In para 8 of the said decision,
the Court observed thus: (Bhaskar Industrial
case, SCC OnLine Kar)

"8. ... Parliament has not conferred any
power of remand to the Court to remit the matter
to the Arbitral Tribunal except to adjourn the
proceedings as provided under sub-section (4) of
Section 34 of the Act. The object of sub-section (4)
of Section 34 of the Act is to give an opportunity to
the Arbitral Tribunal to resume the arbitral
proceedings or to enable it to take such other
action which will eliminate the grounds for setting
aside the arbitral award."

(emphasis supplied)

16. In any case, the limited discretion
available to the Court under Section 34(4) can be
exercised only upon a written application made in
that behalf by a party to the arbitration
proceedings. It is crystal clear that the Court
cannot exercise this limited power of deferring the
proceedings before it suo motu. Moreover, before
formally setting aside the award, if the party to the
arbitration proceedings fails to request the Court to
defer the proceedings pending before it, then it is
not open to the party to move an application under
Section 34(4) of the Act. For, consequent to
disposal of the main proceedings under Section 34
of the Act by the Court, it would become functus
officio. In other words, the limited remedy
available under Section 34(4) is required to be
invoked by the party to the arbitral proceedings
before the award is set aside by the Court.

17. In the present case, the learned
Single Judge had set aside the award vide
judgment dated 7-3-2014. Indeed, the respondent
carried the matter in appeal before the Division
Bench. Even if we were to assume for the sake of
argument, without expressing any opinion either
way on the correctness of this assumption, that the
appeal was in continuum of the application under
Section 34 for setting aside of the award and
therefore, the Division Bench could be requested
by the party to the arbitral proceedings to exercise
its discretion under Section 34(4) of the Act, the
fact remains that no formal written application was
filed by the respondent before the Division Bench
for that purpose. In other words, the respondent did
not make such a request before the learned Single
Judge in the first instance and also failed to do so
before the Division Bench rejected the appeal of
the respondent."

12. In the aforesaid judgement of the
Supreme Court in Kinnari Mullick (supra) it
has been held that the Court can defer the
11 All. M/s P.N. Garg, Engg. & Contractors, Jhansi & Anr. Vs. Chief Engineer, Bhopal Zone, Sultania
 Infantry Lines, Bhopal & Ors.
351
hearing of the application filed under Section 34
of the Act for setting aside the award on a
written request made by a party to the arbitration
proceedings to facilitate the Arbitral Tribunal by
resuming the arbitral proceedings or to take such
other action as in the opinion of the Arbitral
Tribunal will eliminate the grounds for setting
aside the arbitral award. The power under
Section 34 (4) of the Act can be exercised so
long the arbitral award is not set aside. No
power has been invested in the Court to remand
the matter to the arbitral tribunal except to
adjourn the proceedings for the limited purpose
mentioned in sub-section (4) of Section 34 of the
Act. It was further held that consequent to
disposal of the main proceedings under Section
34 of the Act by the Court, it would become
functus officio. The judgement in the matter of
McDermott International Inc.(supra), which
has been relied upon by the Supreme Court in
the case of Kinnari Mullick (supra), is of no
assistance to the applicants.

13. It is pertinent to mention here that the
Supreme Court, in the case of Project Director,
National Highways v. M. Hakeem & another4
(para. 28), has relied upon a judgement of the
Delhi High Court in Puri Construction P. Ltd.
v. Larsen and Tubro Ltd.5 in which it was held
that the power to modify, vary or remit the
award does not exist under Section 34 of the
Act.

14. Therefore, the order passed by the
Court on 16.09.2019 under Section 34 of the Act
remitting the matter back to the Arbitrator to
reconsider all the issues would be beyond the
statutory mandate conferred on the Court and is
thus without jurisdiction.

15. In view of the facts of the present case,
after making the final arbitral award, given the
provisions of sub-Section (1) of Section 32 and
subject to sub-Section (3) of Section 32 of the
Act, the mandate of the arbitral tribunal stood
terminated with the termination of the arbitral
proceedings. Thereafter, the Arbitrator became
functus officio, and, therefore, remitting the
matter back to him by the Court to reconsider all
the issues is not permissible.

16. The last letter written by the applicant
to the opposite parties on 22.03.2021, which is
enclosed
as
Annexure-7
to
the
present
application, demands the appointment of a
substitute sole Arbitrator. In the present case,
just because after remission of the case to the
arbitral tribunal the Arbitrator has resigned and
withdrawn from that case, does not result in
termination of his mandate as envisaged in
Sections 14 and 15 of the Act. It is pertinent to
mention here that under the facts and
circumstances of the present case, since the
arbitrator has been rendered functus officio, there
exists no occasion to invoke the provisions of
Sections 14 and 15 of the Act for appointing a
substitute arbitrator. Sections 14 and 15 of the
Act provide for appointment of a substitute
arbitrator where the specified conditions cause
the mandate of an arbitrator to terminate. The
provisions are as follows:-

"14. Failure or impossibility to act.--
(1) The mandate of an arbitrator shall terminate
and he shall be substituted by another arbitrator,
if -

(a) he becomes de jure or de facto
unable to perform his functions or for other
reasons fails to act without undue delay; and

(b) he withdraws from his office or the
parties agree to the termination of his mandate.

(2)
If
a
controversy
remains
concerning any of the grounds referred to in
clause (a) of sub-section (1), a party may, unless
otherwise agreed by the parties, apply to the
Court to decide on the termination of the
mandate.

(3) If, under this section or sub-section
(3) of section 13, an arbitrator withdraws from
his office or a party agrees to the termination of
352 INDIAN LAW REPORTS ALLAHABAD SERIES
the mandate of an arbitrator, it shall not imply
acceptance of the validity of any ground referred
to in this section or sub-section (3) of section 12.

15. Termination of mandate and
substitution of arbitrator.--(1) In addition to
the circumstances referred to in section 13 or
section 14, the mandate of an arbitrator shall
terminate--

(a) where he withdraws from office for
any reason; or

(b) by or pursuant to agreement of the
parties.

(2) Where the mandate of an arbitrator
terminates, a substitute arbitrator shall be
appointed according to the rules that were
applicable to the appointment of the arbitrator
being replaced.

(3) Unless otherwise agreed by the
parties, where an arbitrator is replaced under
sub-section (2), any hearings previously held
may be repeated at the discretion of the arbitral
tribunal.

(4) Unless otherwise agreed by the
parties, an order or ruling of the arbitral tribunal
made prior to the replacement of an arbitrator
under this section shall not be invalid solely
because there has been a change in the
composition of the arbitral tribunal."

17. Thus, the conditions prescribed in these
Sections 14 and 15 are distinguishable and very
different from the sole condition prescribed in
sub-section (1) of Section 32 of the Act which
mandates termination of the arbitral proceedings
by the final arbitral award of the arbitral
tribunal. Sections 14 and 15 of the Act provide
for termination of the mandate of the arbitrator
and for substitution of the arbitrator. Clearly, the
mandate of an arbitrator stems forth from an
arbitration agreement under Section 7 of the Act
and his appointment under Section 11 of the Act.
Sections 14 and 15 of the Act would only be
applicable where the arbitral proceedings are
pending. In the present case, under sub-section
(1) of Section 32 of the Act, the arbitral
proceedings stood terminated by the final
arbitral award, and, in view of sub-section (3) of
Section 32 of the Act, the mandate of the arbitral
tribunal
stood
terminated
with
with
the
termination of the arbitral proceedings. Under
the circumstances, seeking appointment of a
substitute Arbitrator in respect of the dispute
between the parties pursuant to the aforesaid
order of the Court below dated 16.09.2019, is
misconceived.

18. With regard to the maintainability of an
application before the High Court under the
relevant provisions of Section 11 of the Act, a
coordinate bench of this Court, in the case of
S.K. and Associates v. IFFCO & others6,
(paragraph 25), has held that the sine qua non
for invocation of the powers conferred by
Section 11 of the Act is a failure of a party to the
agreement to act or discharge a function, and
that, in the absence of these primordial
conditions being satisfied, the Chief Justice or
his nominee Judge would not be entitled to
exercise jurisdiction.

19. Clause 70 of the agreement, which
provides for arbitration, reads as follows:-

"70. Arbitration. - All disputes,
between the parties to the Contract (other than
those for which the decision of the C.W.E. or
any other person is by the Contract expressed to
be final and binding) shall, after written notice
by either party to the Contract to the other of
them, be referred to the sole arbitration of an
Engineering Officer to be appointed by the
authority mentioned in the tender documents.

Unless both parties agree in writing
such reference shall not take place until after the
completion or alleged completion of the Works
or termination or determination of the Contract
under Condition Nos. 55, 56 and 57 hereof.

Provided
that
in
the
event
of
abandonment of the Works or cancellation of the
11 All. M/s P.N. Garg, Engg. & Contractors, Jhansi & Anr. Vs. Chief Engineer, Bhopal Zone, Sultania
 Infantry Lines, Bhopal & Ors.
353
Contract under Condition Nos. 52, 53 or 54
hereof, such reference shall not take place until
alternative arrangements have been finalized by
the Government to get the Works completed by
or through any other Contractor or Contractors
or Agency or Agencies.

Provided always that commencement
or continuance of any arbitration proceeding
hereunder or otherwise shall not in any manner
militate against the Government's right of
recovery from the contractor as provided in
Condition 67 hereof."

20. From the record of this application, it
appears that :

(a) A letter dated 11.09.2020 was sent by
Mr. Baljit Singh, the arbitrator, to both the
parties stating that as per the directions of the
Court dated 16.09.2019 for reconsideration of all
the issues and to pass the award afresh, he had
called upon both the parties by his letter dated
09.11.2019 to submit the matter for his
reconsideration, and both the parties had been
making various submissions till March 2020. It
was stated that due to the Covid-19 pandemic it
may not be possible to hold oral hearing, as
requested by the parties, in the near future till
the pandemic situation becomes normal. That he
would superannuate from Government service
on 30.09.2020 and therefore, he would not be
eligible to continue as sole arbitrator. Therefore
the arbitrator resigned and withdrew from the
matter.

(b) Thereafter, by a letter dated 12.10.2020,
the Garrison Engineer sent the case files of the
matter received from the Arbitrator, to the
Government counsel for filing them in the
Court, with a copy of the letter being endorsed
to the applicants for information.

(c) By a letter dated 15.10.2020, the
applicants, with reference to the letter dated
11.09.2020
of
Mr.
Baljit
Singh
(former
arbitrator), requested the Chief Engineer to
communicate the name appointing another
officer as sole arbitrator to enable them to
represent their case before him to adjudicate on
the disputes afresh arising out of the agreement.
It was further requested to hand over the
relevant files/ document returned by the former
arbitrator to the officer who would be appointed
as an arbitrator to enable him to process the case
further.

(d) By means of a letter of 26.10.2020, the
Chief Engineer wrote to the applicant that the
former arbitrator had forwarded all the files and
documents to file in the Court for further
direction in the matter, and, since the matter is
sub-judice, as such further action would be taken
as per the directions of the Court.

(e) Thereafter, by means of a letter of
22.03.2021 (Annexure no.7 to the affidavit)
addressed to the Chief Engineer, the applicant
referred to a letter dated 23.11.2020 sent by him
for substituting the arbitrator under Section 14
(b) of the Act as the mandate of the earlier
arbitrator
was
terminated
due
to
his
superannuation. It was stated that in the event of
the failure of the opposite parties to appoint a
substitute sole arbitrator within 30 days, an
application would be moved before the High
Court under Section 11 (6) of the Act to appoint
an independent and impartial arbitrator.

21. There is no averment in the present
application that, after setting aside of the award
passed by the arbitral tribunal, under the
aforesaid provision of clause 70 of the
agreement, any written notice has been given to
the opposite parties regarding any dispute, to
initiate arbitration proceedings de novo. As
stated above, the last notice given to the opposite
parties by the applicants is the one dated
22.03.2021, which is enclosed as Annexure-7 to
the
present
application,
demanding
the
appointment of a substitute sole Arbitrator. Thus,
in view of the facts and circumstance of the
present case, there is no failure on part of the
opposite parties to act or discharge a function
which would entitle the applicants to invoke the
354 INDIAN LAW REPORTS ALLAHABAD SERIES
powers conferred by sub-sections (4), (5) and (6)
of Section 11 of the Act, and which would
render the present application maintainable.

22. Accordingly, this application is
dismissed. However, the applicants are free to
pursue any remedy they may be entitled to in
accordance with law.
----------
(2021)12ILR A354
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Cases No. 7 of 2021
With reference No .6 of 2021 and Crl. Appl. No. 1861
of 2021

Chandan Singh ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Pradeep Kumar Mishra, Sri Vinay Saran (Sr. Adv. )

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Conviction based on single
eye witness - The Arms Act, 1959: Section 3/25
- Though there is no bar in basing conviction on the
testimony of a single eye-witness but, before doing so
the court must carefully scrutinize the evidence to be
intrinsically reliable probable and wholly trustworthy.
(Para 28)

The Court after analyzing the testimony of the sole
witness (PW -12) finds that the she is not trustworthy
and her testimony is not of that sterling quality which
alone
can
form
the
basis
of
conviction
or
circumstantially relate appellant Chandan Singh to
those murders. (Para 34)

Appeals Rejected. (E-10)

List of Cases cited:
1. Vijay Shankar Vs St. of Ha. (2015) 12 SCC 644

2. Sharad Birdhichand Sards Vs St. of Mah. (1984) 4
SCC 116

3. Bablu Vs St. of Raj. (2006) 13 SCC 116

4. SHivaji Sahabrao Bobade & ANr. Vs St. of Mah.
(1973) 2 SCC 793

5. Devi Lal Vs St. of Raj. (2019) 19 SCC 447

6. Anil Pukan Vs Stat of Assam (1993) 3 SCC 282

7. St. of Raj.Vs Bhola Singh AIR 1994 SC 542

8. Bhimpa Chandapa Hosamani & ors. Vs St. of Karn.
(2006) 11 SCC 323

9. Jagdish & ors. Vs St. of Har.a (2019) 7 SCC 711

10. Kali Ram Vs St. of H.P. (1973) 2 SCC 808

11. St. of U.P. Vs Ashok kumar & anr. (1979) 3 SCC 1
(Delivered by Hon'ble Manoj Misra, J.)

1. (i) As both these appeals and the
reference arise out of a common judgment and
order dated 31.03.2021 passed by Additional
Sessions Judge, Court No.10, Mathura in
connected Sessions Trial Nos. 219 of 2019 and
220 of 2019, these two appeals and the reference
are being decided/ answered by a common
judgment and order.

(ii) In Sessions Trial No. 219 of 2019,
arising out of case crime no.456 of 2018, P.S.
Raya, District Mathura, five persons, namely, (i)
Chandan Singh, (ii) Kali Charan @ Karuwa,
both sons of Chittar Singh; (iii) Anil son of Kali
Charan, (iv) Gajraj son of Gulab Singh; and (v)
Smt. Bhago Devi @ Bhagwati Devi wife of
Chandan Singh, were put on trial. Chandan
Singh, Kali Charan, Anil and Gajraj were
charged for offence punishable under Section
302 read with Section 149 I.P.C.; and Smt.
Bhago Devi was charged under Section 302 read
with Section 120-B I.P.C. In this Sessions Trial