9911796707
TMI Blog2013 (4) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... Such person shall be appointed by the Director (Personnel) within thirty (30) days of the receipt of the notice of any dispute. There will be no objection to any such appointment, that the arbitrator so appointed is an employee of the corporation or that he had to deal with the matter to which the contract relates and ht in the course of his duties as corporation's employee, he had expressed views on all or any of the matter in dispute or difference in favour of the corporation. If the arbitrator to whom the matter is originally referred dies or refuses to act or resign from the position of arbitrator for any reasons, it shall be lawful for the Member of the Corporation to appoint another person to act as arbitrator in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by the predecessors, if both the parties consent to this effect. Failing which they will be entitled to proceed de novo. The arbitrator from time to time with the written consent of both parties to the agreement may enlarge the time to make and publish his award. It is a term of the Agreement that the party invoking arbitration shall specify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut under clause 2.31, the arbitrator can be appointed only by the Hon'ble Chief Justice or his designate under section 11(4) read with section 11(6) of the Arbitration and Conciliation Act. The learned counsel submits that the respondents have lost its right to make any appointment after expiry of thirty days from the date of receipt of notice invoking arbitration. The learned counsel placed reliance upon the judgment of the Supreme Court in the case of Datar Switchgears Ltd. Vs. Tata Finance Limited, (2000) 8 SCC 151 and more particularly paragraphs 9, 11, 14, 18 and 21 in support of the plea that though it is held by the Supreme Court that after expiry of thirty days from the date of receipt notice invoking arbitration clause, the respondents did not loose its right to appoint arbitrator, however, the respondents having failed to appoint arbitrator within thirty days, which condition was part of the procedure agreed upon under clause 2.31, the respondents lost its right to appoint arbitrator as per that procedure and only the Chief Justice or his designate can appoint the arbitrator. The relevant paragraphs read thus :- "9. Clause 20.9 of the Agreement is the Arbitration clause, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file an application even after the 1st respondent invoked Section 9 of the Act and filed a petition seeking interim relief. Under such circumstances, it cannot be said that there was a failure of the procedure prescribed under the contract. 18. In the present case, the respondent made the appointment before the appellant filed the application Under Section 11 but the said appointment was made beyond 30 days. Question is whether in a case falling Under Section 11(6), the opposite party cannot appoint an arbitrator after the expiry of 30 days from the date of demand? 21. We need not decide whether for purposes of Subclauses (4) and (5) of Section 11, which expressly prescribe 30 days, the period of 30 days is mandatory or not." 4. The learned counsel also placed reliance upon the judgment of Rajasthan High Court delivered on 1st December, 2012 in the case Chetan Construction Co. Vs. State and Ors 2005(3) ARBLR 1056 (Raj) and more particularly paragraphs, 8, 12 and 13 thereof which read thus : "8. The respondent counsel Shri J.K. Agarwal on the other hand without disputing the factual position has submitted that even if the respondent State has failed to take its decision with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that under arbitration clause recorded between the parties, there is no consequences provided for the failure on the part of the respondents if appointment of arbitrator is not made within thirty days. The learned counsel distinguished the judgment of Rajsthan High Court relied upon by the learned counsel for the applicants on the ground that in the matter before Rajasthan High Court, the arbitrator was not appointed by the respondents whereas in the present case the arbitrator has been already appointed by the respondents who has entered upon the reference. 8. It is not in dispute that the arbitrator appointed by the respondent has already entered upon the reference and has fixed the date of schedule of hearing. Though the respondents did not appoint any arbitrator within thirty days from the date of receipt of notice, the applicants did not file this proceedings immediately. In the meanwhile the respondents have already appointed arbitrator. The learned arbitrator appointed by the respondents is in place in the office of arbitrator. There is no vacancy as on today which can be filled by the Hon'ble Chief Justice or his designate under section 11(6) of the Arbitration & Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
