# M/S S.K. and Associates and another v. Indian Farmer and Fertilizer and another

- **Citation:** (2010) 3 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-27
- **Case number:** Civil Misc Arbitration Application No. 14 of 2009
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-s-k-and-associates-and-another-v-indian-farmer-and-fertilizer-and-another-41821
- **Pages:** 2

## Text

3 All] M/S S.K. and Associates and another V. Indian Farmer and Fertilizer and another
917
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, C.J.

Civil Misc Arbitration Application No. 14 of 2009

M/S S.K. and Associates and another

 ...Petitioner
Versus
Indian Farmer and Fertilizers Cooperative
Ltd. and another

 ...Respondent

Counsel for the Petitioners:
Sri P.K. Ganguli,
Sri Rajeev Gaur

Counsel for the Respondents:
Sri Ashwani Kumar Mishra.

Arbitration Act-Section-11-application
for
removal
of
arbitrator-without
taking recourse of section 15(6)-heldnot maintainable.

Held: Para 4

Section 13 (5) provides that if a party
is aggrieved by such an award then
such party can challenge the award by
making an application under Section
34, wherein the challenge which was
rejected, can be considered. Where
the
mandate
of
an
Arbitrator
terminates by virtue of Section 15 (6),
a
substituted
arbitrator
shall
be
appointed according to the rules that
were applicable to the appointment of
the Arbitrator being replaced. Once
the
parties
fail
to
appoint
an
Arbitrator in terms of the rules, then
the Chief Justice or his delegate under
Section 11 (6) on a request by a party
can
appoint
an
Arbitrator.
The
scheme, therefore, for removal of an
Arbitrator and filling the resultant
vacancy is clear.

(Delivered by Hon'ble Ferdino I. Rebello, C.J.)

1. This is an application by the
petitioners for revocation of the mandate of
the Arbitrator appointed under Section 11 of
the Arbitration and Conciliation Act, 1996
who is respondent no. 2 to this application. It
is not the case of the petitioners that the
Arbitrator has withdrawn himself and
consequently there is a vacancy. The
challenge is made on the ground that the
petitioners have serious dispute about
impartiality of the Arbitrator.

2. The respondents have filed their
reply wherein they have raised the plea that
considering the provisions of the Arbitration
and Conciliation Act, 1996 (hereinafter
referred to as the Act), it is open to the
petitioners to seek direction for removal or
recall of the Arbitrator. It is submitted that
the Chief Justice exercising his power under
Section 11 cannot exercise jurisdiction to
recall an Arbitrator on the ground as has been
raised on behalf of the petitioners. Section 11
can only be invoked when there is a vacancy.

3. Having heard the parties, in my
opinion, the contention raised on behalf of
the respondents has merit.

Section 12 of the Act provides grounds
for challenge to the appointment of the
Arbitrator. Section 12 (3) of the Act reads as
under:-

"An arbitrator may be challenged only
if--

(a) circumstances exist that give rise to
justifiable doubts as to his independence or
impartiality, or

(b) he does not possess the qualification
agreed to by the parties."
918 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

It is thus clear that it is open to a party to
challenge the continuance of the arbitrator if
circumstances exist that give rise to justifiable
doubts as to his independence or impartiality.

Section 12 (4) of the Act permits an
applicant to challenge the continuance of an
Arbitrator, even if he was earlier a party to the
appointment and the sub-section reads as
under:-

"A party may challenge an arbitrator
appointed by him, or in whose appointment he
has participated, only for reasons of which he
becomes aware after the appointment has
been made."

Section 13 (2) of the Act provides the
procedure for the challenge to the continuance
of an Arbitrator, which includes sending a
written statement of the reasons for the
challenge to the arbitral tribunal.

Under Section 13 (3) of the Act, power
has been conferred on the arbitral tribunal to
decide on the challenge.

4. The next relevant provision is Section
13 (4), which reads as under:-

"If a challenge under any procedure
agreed upon by the parties or under the
procedure under sub-section (2) is not
successful, the arbitral tribunal shall continue
the arbitral proceedings and make an arbitral
award."

Section 13 (5) provides that if a party is
aggrieved by such an award then such party
can challenge the award by making an
application under Section 34, wherein the
challenge which was rejected, can be
considered. Where the mandate of an
Arbitrator terminates by virtue of Section 15
(6), a substituted arbitrator shall be appointed
according to the rules that were applicable to
the appointment of the Arbitrator being
replaced. Once the parties fail to appoint an
Arbitrator in terms of the rules, then the Chief
Justice or his delegate under Section 11 (6) on
a request by a party can appoint an Arbitrator.
The scheme, therefore, for removal of an
Arbitrator and filling the resultant vacancy is
clear.

5. Considering these provisions in the
Act, which provide for a challenge to the
continuance of the Arbitrator, the present
application
is
not
maintainable
and
consequently, the application stands rejected.

6. On behalf of the petitioners, it is
pointed out that an application has already
been moved before the arbitrator. It is open to
the petitioners to press that application before
the arbitrator.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2010

BEFORE
THE HON'BLE F.I.REBELLO, C.J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Special Appeal No. 585 of 2010

Santosh Kumar Agnihotri and others

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
H.G.S. Parihar

Counsel for the Respondent:
C.S.C.
A.M.Tripathi
Jyotinjay Verma

Constitution
of
India
Art.226appointment
of
B.R.C.
And
ABRC-