# Satya Prakash Singh v. Dinesh Prakash Singh & Ors. Opp. Parties

- **Citation:** (2014) 3 ILRA 1301
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-17
- **Case number:** Civil Misc. Transfer Application No. 343670 of 2014
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-prakash-singh-v-dinesh-prakash-singh-ors-opp-parties-43126
- **Pages:** 9

## Headnote

Arbitration and Conciliation Act 1996Section-11(6)-Application for appointment
of Arbitral Tribunal-once by exercising
power the Chief Justice appointed the
Arbitral Tribunal and became final under
section
25
of
the
Act-except
the
contingencies given in section 14-Chief
Justice or the Judge nominated ceased
with any jurisdiction-application wholly
misconceived-not maintainable.
Held: Para-39
Having considered the law and provisions
of the Act, in the facts of the present case
where the subject matter of the dispute
was referred to arbitration and the
arbitration proceedings have been closed.
Similar application for referring the very
same claim under Section 11, in my
opinion, once the power was exercised
under Section 11 and an arbitrator was
appointed, the proceedings have been
closed under Section 25, there is no further
power, considering the nature of power
under Section 11 read with the Scheme, to
once again refer the same disputes to
arbitration, under Section 11. Therefore, in
my opinion, the second application is not
maintainable
and
is
consequently
dismissed. Interim order is vacated.
Case Law discussed:
(2009) 4 SCC 523; (2005) 8 SCC 618; 2012 (6)
ADJ 214; (2009) 8 SCC 520; 2013 (5)

## Text

3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors.
1301
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2014
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Transfer Application No.
343670 of 2014
In Arbitration Application No. 35 of 2009
Satya Prakash Singh
 Applicant
Versus
Dinesh Prakash Singh & Ors. Opp. Parties
Counsel for the Applicant:
Sri Ajay Kumar Singh, Sri Ashish Kumar
Singh, Sri Amit Kumar Singh
Counsel for the Opp. Parties:
Sri Gautam Baghel, Sri Pawan Shukla, Sri
Vivek Kumar Singh, Sri M.D. Singh
Shekhar, Sri Udai Chandani
Arbitration and Conciliation Act 1996Section-11(6)-Application for appointment
of Arbitral Tribunal-once by exercising
power the Chief Justice appointed the
Arbitral Tribunal and became final under
section
25
of
the
Act-except
the
contingencies given in section 14-Chief
Justice or the Judge nominated ceased
with any jurisdiction-application wholly
misconceived-not maintainable.
Held: Para-39
Having considered the law and provisions
of the Act, in the facts of the present case
where the subject matter of the dispute
was referred to arbitration and the
arbitration proceedings have been closed.
Similar application for referring the very
same claim under Section 11, in my
opinion, once the power was exercised
under Section 11 and an arbitrator was
appointed, the proceedings have been
closed under Section 25, there is no further
power, considering the nature of power
under Section 11 read with the Scheme, to
once again refer the same disputes to
arbitration, under Section 11. Therefore, in
my opinion, the second application is not
maintainable
and
is
consequently
dismissed. Interim order is vacated.
Case Law discussed:
(2009) 4 SCC 523; (2005) 8 SCC 618; 2012 (6)
ADJ 214; (2009) 8 SCC 520; 2013 (5)
(Delivered by Hon'ble Suneet Kumar, J.)
(In Re: Civil Misc. Transfer Application
No. 343670 of 2014)
1. The applicant had earlier filed an
application no. 35 of 2009 under Section
11(6) for appointment of an Arbitral
Tribunal
for
settlement
of
dispute
between the applicant and the opposite
parties, with regard to a partnership deed.
Hon'ble Chief Justice in exercise of his
powers under Section 11(6) appointed
Justice D.P.S. Chauhan, a retired Judge of
this Court as sole Arbitrator to decide the
claims arising between the parties.
2.
The parties put in appearance
before the Arbitral Tribunal and during the
pendency of the arbitration proceedings, the
Arbitral Tribunal by order dated 5.10.2014,
in Arbitration Case No. 35-09 of 2012
(Staya Prakash vs. Dinesh Prakash Singh
and others) District Mirzapur, closed the
case, under Section 25 of the Arbitration
and Conciliation Act, 19961 and posted the
case for award on 9.11.2014 at 2:00 PM.
3. The applicant has again approached
the Court on 17.10.2011 by filing the
present Civil Misc. Transfer Application,
under Paragraph 8 of the Scheme of
Appointment of Arbitrators by Hon'ble the
Chief Justice of Allahabad High Court,
19962, seeking the following prayer:-
"It is therefore, most respectfully
prayed that this Hon'ble Court may
1302
 INDIAN LAW REPORTS ALLAHABAD SERIES
graciously be pleased to withdraw the
authority given to the learned Arbitrator
in Arbitration Case No. 35/2009 of 2012
(Satya Prakash Singh vs. Dinesh Singh &
others) and/or designate any other
Arbitrator for the settlement of Claim
Petition between between the claimant
and opposite party no. 1, and/or pass any
other and further order which may meet
at the end of justice, otherwise the
applicant/opposite party no. 1 shall suffer
an irreparable loss and injury."
4. I have heard Sri M.D. Singh
Shekhar,
learned
Senior
Advocate
assisted by Sri Udai Chandani, learned
counsel appearing for the applicant and
Sri Ajai Kumar Singh, learned counsel for
the contesting opposite parties.
5. A preliminary objection has been
raised by Sri Ajai Kumar Singh that the
application is not maintainable, the
applicant has challenged the appointment
of the arbitrator on the grounds mentioned
under
section
12
sub-section
(3)
questioning
the
independence
or
impartiality of the arbitrator and under
section 14 for terminating the mandate of
the arbitrator, for undue delay. The Chief
Justice or his designate shall have no
jurisdiction under Section 11(6) or the
Scheme framed by Hon'ble the Chief
Justice under sub-section (10) of Section
11 to go into the question of Section 12 or
Section 14 of Act, to remove the
arbitrator.
6. The learned Senior Advocate
would submit that the application is
maintainable and the grounds stated in
Section 12(3) and 14(1) are evident from
the record of the arbitration case, the
applicant has lost faith in the Arbitral
Tribunal
as
the
arbitrator
is
not
independent or impartial, further, there
has been undue delay in concluding the
arbitration proceedings, more than three
years has lapsed. The learned Senior
Advocate to substantiate his argument
relied upon the following judgments:-
Union of India vs. Singh Builders3, SBP
& Co. vs. Patel Engineering Ltd. and
another4,
Rungta
Projects
Ltd.
vs.
Government
of
Uttar
Pradesh
and
anothers5, Indian Oil Corporation Ltd.
and others vs. Raja Transport (P) Ltd. 6
7. Sri Ajai Kumar Singh contends
that once an order has been passed under
Section 11(6) for appointment of an
Arbitrator by the Chief Justice or his
designate, the Chief Justice or his
designate becomes functus officio. The
Arbitrator for want of independence or
impartiality under Section 12(3) can be
removed by following the procedure
prescribed under section 13 of the Act,
which in the present case was not
followed, admittedly, no written statement
was filed before the Arbitrator. To
terminate the mandate of the Arbitrator,
for undue delay, under section 14, the
remedy is to approach the original Civil
Court having jurisdiction and not the
Chief Justice or his designate under
Section 11 of the Act. The present
application has been filed with mala fide
intention, to restrain the Arbitrator from
rendering the award on 9.11.2014. Sri
Singh in support of his submissions has
relied upon following judgments:- Suresh
Chandra Agarwal vs. Mahesh Chandra
Agarwal7, M/s S.K. & Associates vs.
Indian Farmer & Fertilizers8, Rakesh Jain
vs. M/s Willowon Builders (India) Pvt.
Ltd.9, Ghaziabad Development Authority
vs.
Subodh
Builders
Pvt.
Ltd.10,
Ahluwalia Contractors (India) Ltd. vs.
Housing
and
Urban
Development
3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors.
1303
Corporation & others11, Chintakayala
Siva Rama Krishna vs. Nadimpalli
Venkata Rama Raju AIR12, M/s SBP &
Co vs. M/s Patel Engineering Ltd. and
others13.
8. Rival submissions fall for
consideration.
9. The question for determination is
as to whether this application filed under
the Scheme of 1996, read with Section 11
of the Act is maintainable or whether, the
Chief Justice or his designate has
jurisdiction to terminate the mandate of
the Arbitrator, already appointed under
Section 11, and to appoint substitute
Arbitrator.
10. Section 12 of the Act provides
the grounds for challenge, whereas,
Section 13 prescribes the procedure to be
followed for such a challenge. Section 14
of the Act permits the termination of the
mandate of an arbitrator, for the reasons
stated therein and Section 15 of the Act
provides for appointment of substitute
arbitrator, in case, the mandate of the
arbitrator,
already
appointed,
is
terminated. Since these are the relevant
provisions of the Act and have a bearing
on the facts and circumstances of the
present case, which are as follows:-
"12. Grounds for challenge.
(1)When a person is approached in
connection with his appointment as an
arbitrator, he shall disclose in writing any
circumstances likely to give rise to
justifiable doubts as to his independence
or impartiality.
(2)An arbitrator from the time of his
appointment and throughout the arbitral
proceedings, shall, without delay, disclose
to the parties in writing any circumstances
referred to in Sub-section(1) unless they
have already been informed of them by
him.
(3) An arbitrator may be challenged
only if-
(a) circumstances exit that give rise
to
justifiable
doubts
as
to
his
independence or impartiality, or
(b)
he
does
not
possess
the
qualifications agreed to by the parties.
(4) 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"
13. Challenge procedure.
(1) Subject to Sub-section (4), the
parties are free to agree on a procedure for
challenging an arbitrator.
(2)Failing any agreement referred to
in Sub-section (1), a party who intends to
challenge an arbitrator shall,within fifteen
days after becoming aware of the
constitution of the arbitral Tribunal of
after
becoming
aware
of
any
circumstances
referred
to
in
Subsection(3) of Section 12, send a written
statement of the reasons for the challenge
to the arbitral Tribunal.
(3) Unless the arbitrator challenged
under Sub-section(2) withdraws from his
office or the other party agrees to the
challenge, the arbitral Tribunal shall
decide on the challenge.
(4) 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.
(5) Where an arbitral award is made
under
Sub-section
(4),
the
party
1304
 INDIAN LAW REPORTS ALLAHABAD SERIES
challenging the arbitrator may make an
application for setting aside such an
arbitral award in accordance with section
34.
(6) Where an arbitral award is set
aside on an application made under
Subsection (5), the Court may decide as to
whether the arbitrator who is challenged
is entitles to any fees.
"14 Failure or impossibility to act.
(1)The mandate of an arbitrator shall
terminate 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 Subsection (3) of Section 13, an arbitrator
withdraws from his office or a party
agrees to the termination of 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."
11. The applicant in the present case
has prayed for termination of the mandate
of the arbitrator (though worded as to
withdraw the authority and designate any
other arbitrator for settlement) because
the applicant apprehends bias on the part
of the arbitrator, thus, doubting his
independence or impartiality. The Senior
Advocate has taken the Court through the
record to demonstrate the lack of
independence or impartiality of the
arbitrator. The details need not be gone
into as it is not relevant to the question
sought to be answered.
12. The grounds for challenge to the
mandate of the arbitrator falls under
Section 12 sub-section (3)(a) of the Act.
Section 13(3) of the Act makes it clear
that unless the arbitrator challenged
withdraws from his office or the other
party agrees to the challenge, the arbitral
Tribunal shall decide on the challenge,
3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors.
1305
admittedly,
this
procedure
was
not
followed by the applicant. The applicant
had not challenged the arbitrator by
following the procedure of challenge
prescribed under sub-clause (2) of Section
13. The applicant within 15 days after
becoming aware of any circumstances
referred to in sub-section (3) of Section
12 must, send a written statement of the
reasons for the challenge to the arbitral
Tribunal under Section 13(3).
13. The arbitral Tribunal shall
decide on the challenge on merits excepta).
if
the
arbitrator
whose
appointment is challenged withdraws
from his office on his own, or
b).
the
other
party
agrees
to
thechallenge.
14. By virtue of Section 13(4) of the
Act, if a challenge under any procedure
agreed upon by the parties or under the
procedure under sub-section (2) fails, the
arbitral Tribunal has to continue the
arbitral proceedings and make an arbitral
award. Sub-section (5) of Section 13 of
the Act empowers a party challenging the
arbitrator to make an application for
setting aside such arbitral award made
under sub-section (4) in accordance with
Section 34 of the Act.
15. Under Section 14(2) of the Act,
the court has the power to decide on the
termination of the mandate on any of the
grounds referred to in Clause (a) of subsection (1) and also in the circumstances
enumerated in Section 15 of the Act and
appoint an arbitrator. Under Section 14 of
the Act the mandate of an arbitrator
stands terminated if he becomes de jure or
de facto unable to perform his functions
or for other reasons fails to act without
unnecessary delay or he withdraws from
his office or the party agreed to the
termination of his mandate. As per
Section 14(1)(b) the mandate of an
arbitrator shall terminate if he withdraws
from his office or the parties agree to the
termination of his mandate.
16. Section 15 provides for a
procedure which has to be followed when
mandate of the arbitrator is terminated
and substitution of the arbitrator in the
circumstances set out under Sub-section
(1) including those referred under Section
13 and 14 of the Act is required. As per
Section 15 sub-section (2) of the Act
where the mandate of an arbitrator
terminates, a substitute arbitrator has to be
appointed according to the rules that were
applicable to the appointment of the
arbitrator being replaced.
17. In the present case the applicant
instead of pursuing the remedy available
for challenging the arbitrator as laid down
in Section 13 or Section 14 has sought
appointment of a substitute Arbitrator on
the ground that the Arbitrator is not
independent or impartial, under Section
11 read with the Scheme.
18. The Chief Justice or his
designate in exercise of power under
Section 11(4) or sub-clause (6) cannot
terminate the mandate of the arbitrator on
challenge
by
a
party
on
grounds
mentioned in Section 12 or 13 of the Act,
therefore, this court has no jurisdiction
under Section 11 to substitute an
arbitrator so appointed in terms of the
arbitration agreement. The meaningful
interpretation of these sections, if read
together,
is
that
challenge
to
the
appointment of the arbitrator has to be
raised by the applicant before the arbitral
1306
 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal itself. If he succeeds in the
challenge, the applicant has no cause or
grievance left but if he fails then he has to
participate in the arbitral proceedings and
if aggrieved by the award, to challenge
the same in accordance with provisions of
the Section 34 of the Act including the
mandate of the Arbitrator.
19. Once the matter reaches the
arbitral Tribunal or the sole arbitrator, the
High Court would not interfere with the
orders passed by the arbitrator or arbitral
Tribunal during the course of the
arbitration proceedings and the parties
could approach the Court only in terms of
Section 37 of the Act or in terms of
Section 34 of the Act.
20.
The seven judge Constitution
Bench of the Supreme Court in S.B.P. And
Company vs. Patel Engineering Ltd.14 has
observed that the High Court should refrain
from interfering against any order passed by
the Arbitral Tribunal during arbitration
proceedings under Article 226 or 227 of the
Constitution. The aggrieved party has a
remedy under Section 34 or Section 37 by
filing an appeal, if available.
21.
This Court in Rakesh Jain vs.
M/s Willowon Builders (India) Pvt.
Ltd.15, where the question before the
Court was as to whether, "is it open to the
Chief Justice,
exercising
jurisdiction
under Section 11(4) of the Arbitration
Act, to remove an appointed Arbitrator
and appoint another Arbitrator in his
place?" The Court held that once an
Arbitrator has been appointed, before the
application is filed, it would not be open
to Hon'ble the Chief Justice or his
designate to remove the said Arbitrator
and appoint another Arbitrator in his
place.
22.
It is to be noted that the Act is
enacted mainly in the pattern of the Modern
Law adopted by the United
Nations
Commission on International Trade law.
The object and the reasons of the Act
clearly indicate that the intention of the Act
is to lay emphasis on speedy disposal of
arbitration proceedings. The Act also seeks
to minimize judicial intervention in the
progress and completion of arbitration
proceedings, which is crystal clear from a
bare reading of Section 5 of the Act which
provides that no judicial authority would
intervene except where so provided in the
Act. Consequently, the bar on Court
interference on challenging the arbitral
Tribunal during the pendency of the
arbitration proceeding
was
meant to
minimize judicial intervention at that stage,
as any interference at that stage would be
against the spirit with which the Act was
enacted. Sub-section (5) of Section 13 of the
Act lays down that challenging an arbitral
award is permitted even on the grounds
taken by the aggrieved party on which the
challenge to the arbitral Tribunal was made.
There is no provision in the Act which
would enable the Court to remove an
Arbitrator
during
the
arbitration
proceedings. But, at the same time the party
having grievance against an Arbitrator
cannot be said to be without a remedy and
the said remedy becomes available as soon
as the arbitral award is made by the
arbitrator or the arbitral Tribunal.
23. Thus clear mandate is to bar
judicial interference except in the manner
provided in the Act. Conversely if there is
no provision to deal with a particular
situation,
Courts
cannot
assume
jurisdiction and interfere.
24. Comparing this legislation with
the earlier legislation on the subject-
3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors.
1307
namely the Arbitration Act, 1940, the
message is loud and clear. The legislature
found mischief in various provisions
contained in the Arbitration Act, 1940
which would enable a party to approach the
Court time and again during the pendency
of arbitration proceedings resulting into
delays in the proceedings. Law makers
wanted to do away with such provisions.
25.
The new Act deals with the
situation even when there is challenge to the
constitution of the arbitral Tribunal. It is left
to the arbitrator to decide the same in the
first instance. If a challenge before the
arbitrator is not successful, the arbitral
Tribunal is permitted to continue the arbitral
proceedings and make an arbitral award.
Such a challenge to the constitution of the
arbitral Tribunal before the Court is then
deferred and it could be only after the
arbitral award is made that the party
challenging the arbitrator may make an
application for setting aside an arbitral
award and it can take the ground regarding
the constitution of arbitral Tribunal while
challenging such an award.
26. Thus course of action to be
chartered in such contingency is spelt out
in the Act itself. Court interference on
basis of petitions challenging arbitral
Tribunal during the pendency of the
arbitration proceedings would be clearly
against the very spirit with which the Act
has been enacted. The mischief which
existed in the earlier enactment and is
sought to be removed by the present
enactment cannot be allowed to be
introduced by entertaining petitions in the
absence of any provision in the new Act
in this respect.
27. Now coming to Section 14 of the
Act, so far as the provisions of the
Arbitration Act, 1940 are concerned,
Section 14(1)(a) and sub-section (2) of the
present Act substantially correspond to
Section 8(1)(b) and Section 11(1) of the
Arbitration Act, 1940. A bare perusal of
Section 14 would show that the mandate
(authority) of an arbitrator shall terminate
on two conditions being satisfied:-
1.) The arbitrator becomes de jure or
de facto unable to perform his functions
or for other reasons fails to act without
undue delay and.
2.) The arbitrator withdraws from
his office or the parties agreed to the
termination of his mandate.
28. It will thus, be seen that it is not
open to a party to unilaterally terminate
the mandate of an arbitrator on the ground
that the arbitrator de jure or de facto
unable to perform his functions or for
other reasons failed to act without undue
delay.
29. In such situation, where one of
the parties wants the mandate of the
arbitrator be terminated on the above
grounds, it will have to take the
controversy to the Court under subsection (2) and the Court will then decide
on the termination of the mandate.
Compared to the old law when the Court
had power to give leave to revoke the
authority of an arbitrator under Section 5
or
to
remove
an
arbitrator
under
circumstances detailed in Section 11 of
the Arbitration Act 1940. The Court has
now no such power, except when it is
asked to decide a controversy brought
before it by any party as to whether an
arbitrator has become de jure or de facto
unable to perform his functions or for any
other reason failed to act without undue
delay. Even here a party may not
1308
 INDIAN LAW REPORTS ALLAHABAD SERIES
approach the Court for this purpose, if it
is so agreed by the parties, it is clear from
the use of words "unless otherwise agreed
by the parties" used in sub-section (2). No
appeal lies from an order of the Court on
the controversy, which is clear from
perusal of Section 37.
30. A conjoint petition under
Section 11(6) and Section 14 does not lie,
since under Section 11(6) the petition has
to be heard and decided by the Chief
Justice or his designate, while a petition
under Section 14 lies to the "Court". Since
fora are different, conjoint petition does
not lie. (Grid Corporation of Orissa Ltd.
vs. AES Corporation16.
31. An application under Section
14(2) of the Act for decision on
termination of the mandate of an
arbitrator lies only before the "Court" as
defined in Section 2(1)(e) of the Act.
32. In a case, where, the Supreme
Court had appointed the arbitrator in
question, on an application made to it
under Section 11(5) and (6) of the Act,
held that application under Section 14(2)
of the Act for terminating the mandate of
the arbitrator was not maintainable before
the Supreme Court. The jurisdiction
which the Chief Justice or his designate
exercises under Section 11(6) of the Act
is limited jurisdiction. The Supreme Court
becomes functus officio after exercising
jurisdiction under Section 11(6) of the
Act. (Nimet Resources Inc. vs. Essar
Steels Ltd.17).
33.

There
is
no
automatic
termination of the mandate of an
arbitrator on the alleged ground of his
failure to act without undue delay. It is
only the Court which will have to resolve
the dispute whether the arbitrator had
failed to act without any undue delay. But
if
the
arbitrator
fails
to
conclude
arbitration proceedings within the time
agreed to between the parties and parties
do not extend the mandate of the
arbitrator any further, the mandate of the
arbitrator
automatically
terminates.
(N.B.C.C. Ltd. vs. J.G. Engineering Pvt.
Ltd.18).
34.

Termination
of
arbitral
proceedings is different from termination
of
the
mandate
of
the
arbitrator.
Termination of arbitral proceedings is
governed by Section 32 of the Act. The
arbitral proceedings can come to an end
on the events mentioned in Section 32 had
occurred. Thus, mandate (authority) of an
arbitrator can be terminated but that
would
not
mean
that
the
arbitral
proceedings have also terminated.
35. If an arbitrator refuses to act as
an arbitrator, a substitute arbitrator would
be appointed in his place under subsection (2) or Section 15, except where
the intention of the parties was to refer the
disputes to arbitration by a particular
person only.
36. "Rules" referred to in Section
15(2) would refer not only to any
statutory rules or rules framed under the
Act or under the Scheme, but also mean
that
substitute
arbitrator
must
be
appointed according to the original
agreement or provision applicable to the
appointment of the arbitrator at the initial
stage. (Yashwitha Construction (P) Ltd.
vs. Simplex Concrete Piles India Ltd.19).
37. In National Highways Authority
of India vs. Bumihiway D.D.B. Ltd.20
Supreme Court held that provisions of
3 All]. M/s Banaras Auto Traders & Anr. Vs. M/s Reliance Web Stores Ltd. & Ors.
1309
Section 15(2) states that a substitute
arbitrator shall be appointed according to
the rules applicable to the appointment of
arbitrator being replaced. Appointment of
retired Chief Justice by the High Court
under Section 11(6) was set aside and
directions was given that India Road
Congress be approached as per the agreed
procedure to appoint the arbitrator.
38.
The application is misconceived
and is not maintainable under paragraph 8
of the Scheme, paragraph 8 refers to
withdrawal of authority by the Chief Justice
on receipt of a complaint from either party
to the arbitration agreement or otherwise is
of opinion that the person or institution
designated by him under paragraph 3 has
neglected or refused to act or is incapable of
acting he may withdraw the authority given
by him to such person or institution and
dealing with the request himself or
designate another person or institution for
that purpose. Paragraph 3 provides that
upon receipt of a request under paragraph 2,
the Chief Justice may either deal with the
matter entrusted to him or designate any
other person or institution for that purpose;
and paragraph 2 provides where a request to
the Chief Justice under sub-section 4 or subsection 5 or sub-section 6 of Section 11
shall be made in writing and accompanied
by the documents mentioned therein. Thus
reading of paragraph 2, 3 and 8 would
clearly
demonstrate
that
the
powers
conferred under paragraph 8 has nothing to
do with the removal of an arbitrator or
appointment of a substitute arbitrator.
Paragraph 8 only confers power upon the
Chief Justice to withdraw the authority
given by him to the designate person or
institution for that purpose.
39. Having considered the law and
provisions of the Act, in the facts of the
present case where the subject matter of
the dispute was referred to arbitration and
the arbitration proceedings have been
closed. Similar application for referring
the very same claim under Section 11, in
my
opinion,
once
the
power
was
exercised under Section 11 and an
arbitrator was appointed, the proceedings
have been closed under Section 25, there
is no further power, considering the
nature of power under Section 11 read
with the Scheme, to once again refer the
same
disputes
to
arbitration,
under
Section 11. Therefore, in my opinion, the
second application is not maintainable
and is consequently dismissed. Interim
order is vacated.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2014
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Arbitration Petition No. 57 of 2007
M/s Banaras Auto Traders & Anr.
Petitioners
Versus
M/s Reliance Web Stores Ltd. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Udai Chandani
Counsel for the Respondents:
Sri
R.D.
Khare,
Sri
Siddharth,
Sri
Siddharth Khare, Siddharth Singh
Arbitration & Conciliation Act 1996-Section
11(5)-Territorial jurisdiction-both parties
residing at Mumbai-as per section 16 of
franchisee agreement only Civil Court at
Mumbai-entrusted with jurisdiction-mere
filing
application
before
Civil
Court
Varanasi-not
confer
jurisdiction
of
Allahabad High Court-application rejected.