1993 (1) TMI 253 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Validity and enforcement of the arbitration clause.
2. Appointment of an arbitrator by the Court versus the authority named in the contract.
3. Allegations of bias in the appointment of an arbitrator by the Engineer-in-Chief.

Detailed Analysis:

1. Validity and Enforcement of the Arbitration Clause:
The core issue revolves around the arbitration clause (Clause 70) of the General Conditions of Contract, which mandates that all disputes between the parties be referred to the sole arbitration of an engineer-officer appointed by the Engineer-in-Chief. The plaintiff-respondent argued that the defendant-appellant failed to appoint an arbitrator as required, thus necessitating court intervention. The court found that the arbitration clause was valid and binding on both parties. The plaintiff's move to court was justified due to the defendant's inaction in appointing an arbitrator. The court emphasized that the parties should honor their contractual obligations, including the arbitration agreement.

2. Appointment of an Arbitrator by the Court versus the Authority Named in the Contract:
The learned single Judge initially appointed an arbitrator, citing precedents that suggested the court could appoint an arbitrator if there was a reasonable apprehension of bias or if the named authority failed to act. However, the appellate court disagreed with this approach, highlighting that the court should not appoint an arbitrator contrary to the terms of the arbitration agreement unless there is substantial evidence of bias or other compelling reasons. The appellate court referred to previous judgments, including Union of India v. Prafulla Kumar Sanyal and M/s Ama Corporation, Madras v. Food Corporation of India, to support its stance that the arbitration agreement should be enforced as written, and the parties should first seek the appointment of an arbitrator through the agreed-upon mechanism.

3. Allegations of Bias in the Appointment of an Arbitrator by the Engineer-in-Chief:
The plaintiff-respondent contended that the Engineer-in-Chief and any arbitrator appointed by him would be biased. The appellate court examined the doctrine of bias, particularly the principle of "nemo judex in causa sua" (no person can be a judge in their own cause). The court noted that mere suspicion of bias is insufficient; there must be clear and positive evidence. The court found no such evidence in this case. It referenced the decision in M/s. Indian Oil Corporation Ltd. v. M/s. Poppat Jamal and Sons, which held that an arbitration clause referring disputes to an engineer of one party could not be disregarded merely on the ground of potential bias unless there was a reasonable probability of unfairness. The appellate court concluded that the plaintiff-respondent's apprehensions were speculative and did not justify bypassing the agreed arbitration mechanism.

Conclusion:
The appellate court allowed the appeal, directing the Engineer-in-Chief to appoint an arbitrator within two weeks. If the Engineer-in-Chief failed to do so, the arbitrator appointed by the learned single Judge would be deemed appointed. This decision underscores the importance of adhering to arbitration agreements and the high threshold required to prove bias sufficient to override such agreements. The court emphasized the principle that contractual obligations, including arbitration clauses, should be honored unless there is compelling evidence to the contrary.