9911796707
TMI Blog1987 (7) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... udge, when she passed the order, acted without jurisdiction. There was an arbitration agreement. Clause 25 of the said Agreement, inter alia, was as follows: except where otherwise provided in the contract all questions of disputes relating to the granting of specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship and materials used in the work or as to any question claims, rights, matters, or things whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the work or execution or failure to execute the same where arising during the progress of the work or after comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d arbitrator, and it was urged that instead of appointing any officer of the respondent as arbitrator an independent member of the Bar be appointed as arbitrator. The learned Judge passed such order on 19th April, 1983 while recording these facts as alleged by the petitioner. These appear to have been reasons for appointing Sri Amitav Guha as the arbitrator in this case in terms of prayer (c) of the said petition. 3. The learned judge in the impugned order has observed that the Court was bound to enforce the particular agreement with which the parties came to the Court, and the parties were not entitled to have any fresh opportunity to appoint a new arbitrator as that would amount to a new agreement between the parties. This position is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laims and other documents in support thereof. It appears from the List of Dates submitted before us that respondent No. 1 moved three interlocutory applications at different points of time which were, however, disposed of with orders in favour of the appellant. Both parties got extension of the arbitration proceedings even by Hon'ble Mrs. Justice Pratibha Bonnerjea at least 14 times and the last extension was granted up to November, 1985 by Justice Mrs. Bonnerjea. In the meantime the said Arbitrator had held 74 sittings which were attended by the parties of both sides and their counsel. A large amount of time and money, same at the cost of public have been spent on these. 4. In the year 1985 the respondent No. 1 challenged the validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty when the submission was made. 6. Mr. Kacker submitted that this principle could be invoked only in a situation where the challenge is made only after the making of an award, and not before. We are unable to accept this differentiation. The principle is that a party shall not be allowed to blow hot and cold simultaneously. Long participation and acquiescence in the proceeding preclude such a party from contending that the proceedings were without jurisdiction. 7. Russell on Arbitration, 18th Edition, page 105 explains the position as follows: If the parties to the reference either agree beforehand to the method of appointment, or afterwards acquiescence in the appointment made, with full knowledge of all the circumstances, they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel for the respondents drew our attention to the fact that the decision in the Chowdhuri Murtaza Hossein's case was where the party challenged the appointment of the receiver after the award was made. He also submits that in this case the respondents herein had challenged the order of appointment of the arbitrator on 19.4.83 and not after the arbitrator had made the award. We are unable to accept this distinction. Basically the principle of waiver and estoppel is not only applicable where the award had been made but also where a party to the proceeding challenges the proceedings in which he participated. In the facts of this case, there was no demur but something which can be called acquiescence on the part of the respondents whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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