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TMI Blog2006 (9) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Engineer (Arb.), New Delhi as the sole arbitrator was said to have been drafted on 4.2.2002. It, however, was dispatched on 7.02.2002. On the same day, having regard to the fact that allegedly the Managing Director of the Appellant did not respond to the notice issued to him, an application was filed by Respondent herein before the High Court of Orissa purported to be under Section 11 of the Arbitration and Conciliation Act, 1996 (for short "the 1996 Act"). It is stated that the said Shri Gurbax Singh submitted his resignation whereupon the Chief Engineer appointed one Shri A.K. Naik as the sole arbitrator on 7.07.2002. He is also said to have resigned and in his place Shri Gurbax Singh was again appointed as arbitrator on 17.03.2003. The appointments were made during pendency of the said proceedings before the High Court under the 1996 Act. When the matter came up for hearing before a Division Bench of the High Court, in its order dated 20th January, 2006, it was recorded: "Learned counsel for the petitioners placed before me a list of names of six persons to appoint one of them as Arbitrator and to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's subsequent instruction in the order." By an order dated 3rd March, 2006, the High Court refused to recall its order dated 20th January, 2006 stating: "Now, learned counsel for opposite parties appears and submits that the aforesaid recording that he had no objection against the appointment of Shri B.C. Bhattacharya is not correct and in fact he had objection. He wants this to be recorded in the order. But, I do not find any reason to change the appointment of Shri B.C. Bhattacharya as the Arbitrator, as I am told that Shri B.C. Bhattacharya has already started functioning as Arbitrator by issuing notice to the concerned parties. Further, the learned counsel for opp. Parties could not give any reason as to why he has objection against the appointment of Shri B.C. Bhattacharya as Arbitrator. In this view of the matter, no further order is required to be passed." Mr. Chetan Sharma, learned senior counsel appearing on behalf of the Appellants submitted that keeping in view the arbitration agreement contained in Clause 25 of the contract, the High Court had no jurisdiction to appoint any person other than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th February, 2002. By that time, 30-days period contemplated under the Act lapsed. The Managing Director of the Appellant was required to communicate his decision in terms of Clause 25 of the contract. What would be the meaning of the term 'communicate' came up for consideration before this Court in State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313], wherein it was held: " It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order" [See also Sultan Sadik v. Sanjay Raj Subba and Others, (2004) 2 SCC 377] The contract entered into by and between the parties was subject to the provisions contained in the 1996 Act. Although in terms of the arbitration agreement contained in Clause 25 of the contract, ordinarily the arbitrator appointed by the Managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts." But, herein the issue is entirely different. Apart from failure on the part of the Managing Director of the Appellant to appoint an arbitrator within the specified time, the Appellants evidently waived their right under the arbitration agreement. Mr. Sharma's submission to the effect that the learned counsel who consented to the appointment of Shri Bhattacharya was a junior counsel and he had no instructions in this behalf cannot be accepted. No such statement was made before the High Court. It had never been contended before the High Court that the counsel had no authority to make such concession. Moreover, the application filed under Section 151 of the Code of Civil Procedure by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsbury's Laws (4th edn) para 1471] Waiver may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel. [See 45 Halsbury's Laws (4th edn.) para 1269] In Indu Shekhar Singh and Ors. v. State of U.P. and Ors. 2006 (5) SCALE 107, this Court held: "They, therefore, exercised their right of option. Once they obtained entry on the basis of electi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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