9911796707
TMI Blog2002 (8) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... as published on 18th September, 1998. The said award was challenged on various grounds which included participation of Sri S.K. Poddar as an Arbitrator though he acted on behalf of the respondent. Petitioner alleged that he was denied fair and proper opportunity in taking part in the arbitration proceeding and this was in violation of the principle of natural justice. It had been further alleged that rejection of the petition under section 33 of the Arbitration and Conciliation Act, hereinafter referred to as "Act" and rejection of the application under section 12(3) of the Act by the Arbitral Tribunal clearly reflected "misconduct". Petitioner also claimed that the award in question was bad and illegal on the ground that one of the Arbitrators Sri S.K. Poddar did not participate at the time of hearing of the application in accordance with the decision of the Arbitral Tribunal in response to an application under section 13 of the Act challenging his appointment. The said application challenging the "award" was registered as T1287/1998 (S.P. No. 465/1998) and it was dismissed by the Hon ble Justice Pinaki Chandra Ghosh by the judgment dated 17-5-2000. Being aggrieved by and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues involved for the purpose of disposal of the said petition. The matter was next fixed on 26th August, 1998. Due to absence of the learned Arbitrator Mr. Subrata Banerjee, the matter was adjourned to 8-9-1998. Both parties made further submission on 8-9-1998. Mr. S.K. Poddar did not participate in the meeting. The next date was fixed on 14-9-1998 for further proceeding (order). On the said date, the petition dated 18-8-1998 was disposed of by passing a reasoned order in a separate sheet. Arbitration award thereafter was passed on 18-9-1998. Now, section 12 and section 13 of the Act lay down a set of provisions about the disqualifications of an Arbitrator and the procedure for challenge. Section 12(3) of the Act reads as follows : "(3) 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 posses the qualifications agreed to by the parties." Section 13(2) of the Act gives 15 days time from the date of becoming aware of the constitution of the Tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12 to challenge an Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel for the appellant has categorically stated that it was the duty of Mr. Parimal Sarkar and Mr. S.K. Poddar, Arbitrators, to disclose their connection with the subject-matter of the arbitration which was the agreement dated 12th May, 1993 as well as with the parties. Much has been submitted by the learned counsel for the parties regarding role of Arbitrators and their functioning in the context of the Act. It is stated that Mr. S.K. Poddar was under the statutory obligation to disclose his role in drafting the Arbitration Agreement on behalf of the respondent-irrespective of earlier act as a lawyer for the appellant or, independent of the reaction of the appellant. Appellant s grievance also includes non-service of notice upon him before closing proceeding and this, according to the appellant, is in total defiance of section 18 of the Act. Learned counsel for the appellant asserted that there cannot be a right without a remedy. And, principles of natural justice must come into play. It was submitted that if the Act is mandatory, disobedience entails legal consequences, which may take the shape of a public or private law remedy obtainable in a court of justice [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Iron Steel Co. Ltd. v. Sutna Stone Lime Co. Ltd. AIR 1991 Cal. 3, has submitted that if the Arbitrator is of the opinion that the absence of a party is deliberate with the intention to avoid or delay the proceedings, the Arbitrator is certainly entitled to proceed ex parte . The fact which is to be taken into consideration by the Arbitrator is the attitude or conduct of the party concerned. If the Arbitrator comes to a conclusion taking into consideration the records of the proceedings before him that the party concerned has no intention to allow the arbitration proceedings to continue in a proper and regular manner or that they are intentionally delaying the matter, only in such a case he can proceed ex parte and can pass the award ex parte . It is further submitted that it is well settled that the Arbitrators are not bound to give notice if they are satisfied that a particular party does not intend to appear and is deliberately keeping away. In this context reference has been made to the decision in the case of Prem Chand Manik Chand v. Fort Gloster Jute Manufacturing Co. Ltd. AIR 1959 Cal. 620. Mr. Mitra, has also drawn our attention to the decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Sarkar is concerned, grievance initially ventilated in his contention in the proceedings as Arbitrator was dealt with and it was not further raised. Mr. S.K. Poddar as revealed from the supplementary affidavit dated 8th December, 1998, also acted for the appellant in previous legal matters and proceedings. Having regard to the expertise, both the parties consented to his appointment as one of the Arbitrators and it can only be seen as to whether his conduct could ever fail to inspire confidence of the parties. It is not a question of losing confidence for the sake of it, but whether there are sufficient reasons to lose that confidence. The arbitration proceedings would clearly reveal that repeated opportunities have been given to the parties to place their respective cases. Learned Trial Judge has observed that "Arbitral Tribunal took all necessary steps for the matter of serving notice"; "time was granted almost on each and every occasion and the refusal on the part of the learned counsel not to cross-examine and/or is not ready to go on can only give authority to the Arbitrators to close the cross-examination - nothing else". It is further observed that if a party by his con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to provide a fair means for the resolution of the matters falling to be determined. It is clearly laid down that the Tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decision of the matters of procedure and evidence and in the exercise of all other powers conferred on it. It is clear that the procedures to be adopted will depend upon the circumstances of the particular cases. There is no prescribed procedure that will be suitable in all cases and the Tribunal will be expected to adopt a flexible approach as the needs of the case dictate. No doubt, the statute demands that the party must be given a reasonable opportunity to present his case. This means, he must be given an opportunity to explain his argument to the Tribunal and to adduce evidence in support of his case. But no attempt should be made to read more than what meets the eyes. The word "reasonable" cannot be so stretched that it amounts to unfettered opportunity. Tribunal is certainly required to act impartially and it must also appear to be impartial. At the same time, the party is required to comply with the procedural orders and directions from the Tribunal, including th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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