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TMI Blog1995 (8) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... hed the High Court under Sections 5, 11 and 12 of the Arbitration Act, 1946 for termination of the arbitration and appointment of another arbitrator. After revoking the appointment of the third respondent Devi Prasad Lehari as an arbitrator, the High Court appointed another arbitrator by the impugned order. The learned Single Judge proceeded on the premise that since Section 96 empowers the Registrar to extend time only upto one year to enable an arbitrator to make the award, and the arbitrator had failed to make the award within the extended one year period, the Registrar be came functus officio to extend further time. So, the arbitrator was left with no power to make the award. Resultantly, the first respondent was entitled to invoke the provisions of the Arbitration Act. 1940, by operation of Section 46 thereof 3. The question is whether the view of the High Court is correct and the arbitration proceedings before the third respondent stood abated and whether the civil court has power to terminate his nomination and to appoint in his place another arbitrator? 4. Shri Santosh Hegde, learned senior counsel for the appellant, contended that the power of the registrar under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is-a-vis, the provisions of the Arbitration Act. 8. Section 95 of the Act is as follows: (1) Any disputer concerning the business of a co-operative society capable of being the subject of civil litigation or any dispute relating to the affairs of a co-operative society (other than a dispute relating to the disciplinary action taken by a co-operative society or the terms and conditions of service of the paid employees of the co-operative society or the terms and conditions of the service of the paid employees of the co-operative Society) shall be referred in the prescribed manner to the Registrar, if the parties thereto are among the following: (a) A co-operative society or its board or an officer (past or present) agent, employee or liquidator of a co-operative society; or (b) A member of a past member or a person claiming through a member or a past member or on behalf of a deceased member of a co-operative society or a financing bank of a co-operative society; or (c) A surety of a member or past member or deceased member of a co-operative society, whether such surety is or is not a member of the co-operative society; or (d) Any other co-operative or any person in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In a situation like the facts in this case, the question would be whether the Registrar has any power to make further extension or can he withdraw the dispute for himself for decision or appoint a fresh arbitrator, when he finds that the arbitrator had not decided the dispute within one year prescribed under Section 96(5) and (6) read together. A conjoint reading of these provisions shows that the Registrar is left with no power to extend time to make the award beyond one year, However, his power to deal with the situation is not totally denuded, Rule 178 fills the gap, which provides the power and procedure to deal with the situation. It envisages that on an application made by either party to an arbitration proceeding pending before an arbitrator or board of arbitrators, the Registrar may either withdraw the reference to himself for deciding the dispute or he may appoint another arbitrator or board of arbitrators to decide the dispute or make a fresh appointment of arbitrator or board of arbitrators for deciding the dispute. This scheme is consistent with the right of appeal provided against the award of the arbitrator under section 136 of the Act, read with the Schedule I of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The condition precedent for applying Section 46 is that there should not exist any inconsistency between the special law and the Arbitration Act. It would thus be seen that for revocation of the appointment of an arbitrator made by the Registrar under Section 95 of the Act, there must exist conditions like misconduct etc. as required by Section 11 of the Arbitration Act and on proof thereof only the court gets power to remove the arbitrator and exercising power under Section 12 of the Arbitration Act, the court would appoint another arbitrator. 16. But then by operation of Section 46, Section 12 stands excluded. From where then the court gets power to appoint another arbitrator? There is no power under any other provision of the Arbitration Act to appoint an arbitrator by the court in place of arbitrator appointed under Section 95 of the Act. The only other provision is one under Section 21 of the Arbitration Act. Since there is no suit pending in a Civil Court, the question of appointment of an arbitrator under Section 21 also does not arise. Would the party then be left without any remedy to have the dispute decided by an arbitration, except to go to a Civil Court? That woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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