M/S DEWAN CHAND v. M/S B.P.T.P.

1. The present petition has been filed on behalf of the petitioner under section 11(5) and (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) seeking the following reliefs: “a) Allow the present Petition and appoint a Sole Arbitrator as per provision of Arbitration and Conciliation Act, 1996 as amended to resolve the disputes between the parties, and b) Pass any other order/orders as this Hon'ble Court might deem fit and proper in the facts in the facts and circumstances of the case.”

2. Learned counsel appearing on behalf of the petitioner submitted that the present petition has been filed on behalf of the petitioner seeking appointment of an arbitrator in the matter titled as “M/s Dewan Chand Vs. M/s BPTP Ltd.” pending before Justice (Retd.) R.V. Easwar.

3. It has been submitted on behalf of the petitioner that this Court vide order dated 16th January, 2019 appointed the current arbitrator to adjudicate the disputes between the parties, in view of the demise of the former arbitrator.

4. It has been submitted on behalf of the petitioner that the proceedings were at the stage of the claimant's evidence. Furthermore, the crossexamination of the claimant was underway when the issue went before Judge (Retd.) Late S.K. Mahajan, who initially served as the sole arbitrator. On 23rd September, 2016, Judge (Ret.) Late SK Mahajan passed away, bringing the proceedings to an immediate halt. In response to the filing of Arbitration Petition No. 24 of 2019, Justice (Retd.) R.V. Easwar was appointed as the sole arbitrator. It is further submitted that there have been no hearings before Justice (Retd.) R.V. Easwar.

5. It has been submitted on behalf of the petitioner that the current Arbitrator, Justice (Retd.) R.V. Easwar, has demonstrated an incapacity to proceed with the instant arbitration proceedings. It is further submitted that the petitioner made an oral request to the respondent for the appointment of an arbitrator and nearly five months have passed since a written notice/email dated 16th June, 2022 was sent to the respondents' attorney asking for the appointment of an arbitrator along with several oral requests.

6. It has been submitted on behalf of the petitioner that both the parties gave appointed arbitrator, Justice R.V. Easwar, the documents they had obtained from the late Justice S.K. Mahajan's office. Subsequent thereto, nothing significant occurred in the said proceedings.

7. Per contra, learned counsel appearing on behalf of the respondent submitted that the petition should be rejected for lack of jurisdiction. It is further submitted that Section 11 of the Act does not provide with the authority to substitute an Arbitrator appointed by prior decisions of this Court. It is argued that the petitioner's remedy, if any, does not lie in invoking jurisdiction of this Court under Sections 11(5) or (6) of the Act.

8. Learned counsel appearing on behalf of the respondent submitted that any document attesting to the learned Arbitrator, Justice (Retd.) R.V. Easwar, being recused from the case or the termination of his appointment has not been submitted by the petitioner for the record of this Court. It is further submitted that the petitioner cannot invoke this Court's jurisdiction to request the appointment of another arbitrator in the absence of a document either attesting to the termination of the learned Single Arbitrator's mandate under the Act or a contract between the parties to that effect. Moreover, as of the filing date of the instant petition under response, the learned Sole Arbitrator's mandate continues to be in effect.

9. It has been submitted on behalf of the respondent that in light of the current mandate of the learned Single Arbitrator, the present petition seeks the recall of the earlier order passed by this Court dated 16th January, 2019, under Section 11 (6) of the Act, whereby Justice (Retd.) R.V. Easwar was appointed as the Sole Arbitrator to decide the parties' reference. It is further submitted that in accordance with established legal principles, this Court lacks the authority to review/recall an order passed under Section 11 of the Act and substitute an arbitrator while exercising jurisdiction under Section 11 of the Act.

10. It is submitted on behalf of the respondent that the petitioner relied upon two emails dated 1st June, 2022 and 16th June, 2022 coupled with a letter of the same date to demonstrate the respondent's inability to appoint an arbitrator. It is further submitted that the foregoing letters were sent maliciously to the former counsel for the respondent, who had been raised to the position of sitting judge of this Court prior to the date of the letters. Despite being aware of the above truth, the petitioner opted not to send the preceding communication directly to the respondent. Hence, the current petition is not maintainable since the respondent was not given the opportunity to select an arbitrator.

11. Heard the learned counsel appearing on behalf of the parties and perused the record.

12. This Court finds force in the arguments advanced by the learned counsel appearing on behalf of the respondent as the Section 11 of the Act does not provide for the substitution of an arbitrator or termination of its mandate.

13. Furthermore, this Court is of view that the petitioner has failed to provide any cogent reason for the substitution or termination of the mandate of the learned Sole Arbitrator, Justice (Retd.) R.V. Easwar.

14. This Court is of view that the Section 11 of the Act has been wrongly invoked on behalf of the petitioner in order to substitute the arbitrator that was so appointed by the Predecessor Bench of this Court.

15. Accordingly, the instant petition being devoid of any merit stands dismissed.