JAGDISH CHANDRA, J. Oral. ( 1 ) HE petitioner M. S. Khanna Associates (P) Limited, Contractors, F-22, Bha-gat Singh Market, New Delhi has put up this petition undersections 1) and 12 of the Arbitration Act, 1940 (hereinafter to be referred to as the Act) for the removal of Mra. S. Khullar, respondent No. 2, as Arbitrator who entered upon. the reference on 21-4-1981 to resolve the disputes and differenceswhich had arisen between the petitioner on the one hand andrespondent No. 1. New Delhi Municipal Committee on the otherand for appointing another arbitrator in his place. The arbitration clause No. 25 appearing in the contract, between the partieswas invoiced by the petitioner as early as 14-1-1980 and in pursuance thereof the Administrator of respondent No. 1 N. D. M. C. appointed Mr. A. K. Guha as Arbitrator to adjudicate upon thedisputes between the parties vide letter dated 24-9-1980 butmr. Guha resigned as an Arbitrator subsequently without takingup the matter and thereafter the Administrator appointed respondent No. 2 A. S. Khullar as the sole arbitrator or vide his letterdated 16-4-1981. ( 2 ) IT is alleged that after entering upon the reference on21-4-1981 even though the Arbitrator had called upon the partiesto file their submissions of claims before him and the petitionercomplied with that direction, respondent No. 1 did not and thearbitrator misconducted himself in not reminindg respondentno. 1 to file its claim or reply to the claim of thepetitioner for a long time and rather allowed respondent No. 1to raise take objection such as that respondent No. 1 had notbeen supplied the copy of the claim of the petitioner which objection was raised by respondent No. 1 after very long time. The petitioner has been supported by the affidavit deposed tomr. D. D. Chawla one of the Directors of the petitioner company. The petitioner has been supported by the affidavit deposed tomr. D. D. Chawla one of the Directors of the petitioner company. ( 3 ) THIS application has been resisted by respondent No. 1and in its reply it has controverted the allegations of any dilatory tactics on the part of respondent No. 1 or any unreasonabledelay on the part of the arbitrator, by asserting that copy ofthe claim had not been supplied to it by the petitioner and itwas supplied only as late as 4-6-1982 and further that the arbitrator who was Vigilence Officer of respondent No. 1 N. D. M. Cwas assigned some duties in the ASTAD as a result of whichhe was not free to hurry up with the giving of the award, andwhen the arbitrator vide his letter dated 21-1-1983 requestedthe parties to appear before him on 14-2-1983 at 3. 00 P. M. for further proceedings with the matter and the matter was adjourned to 16-3-1983 at the request of the respondent No. 1n. D. M. C. , the petitioner refused to participate in the arbitrationproceedings for the reason that he had already moved thispresent petition. The averments in the reply have been supported by two affidavits one deposed to by Mr. N. C. Jain, Secretary ,n. D. M. C. and the other by the arbitrator A. S. Khullar himself. Rejoinder has also been filed by the petitioner controverting theassertions of respondent No. 1 and this rejoinder is again supported by the affidavit deposed to by D. D. Chawla one of thedirectors of the petitioner-company. The learned counsel forrespondent No. 1 challenges the maintainability of this petitionon the ground that the statutory period of four months withinwhich an arbitrator is to make and pronounce his award hasalready expired as a result of which the arbitrator had becomefunctus officio and consequently the question of his removal asarbitrator did not arise and there was no necessity of makingsuch a petition and in support of this proposition he has reliedupon an authority of Calcutta High Court reported as Arbnhindusthan Steel v. Appejay Pr. Ltd. AIR 1967 Cal 291 this authority does support this contention of the learnedcounsel for respondent No, 1. It has laid down as follows : "the authority of an arbitrator cannot be revoked whenin law the arbitrator docs not exist and/or cannotfunction. Ltd. AIR 1967 Cal 291 this authority does support this contention of the learnedcounsel for respondent No, 1. It has laid down as follows : "the authority of an arbitrator cannot be revoked whenin law the arbitrator docs not exist and/or cannotfunction. In other words if the arbitrator has become flinctus officio by reason of the expiry of fourmonths in terms of Rule 3 of Sch. I of the Actthe question of revokation of authority of the arbitrator cannot arise. "the perusal of this authority shows that it relied upon Louisdreyfus and Co. v. R. A. Arunachala Ayya AIR 193! Privycouncil 289 (2) and Harishankaralal Shambhunathair 1962 Supreme Court 78 (3 ). Both these authorities weretaken note of by this Calcutta authority in paragraphs 6 and 7thereof. The perusal of this authority shows that it took noteof the provision of law contained in Sec. 28 of the Arbitrationact read with Clause 3 of Sch. I of the Act as a result of whichthe arbitrators became functus officio after the expiry of thestatutory period of four months reckoned from the date of thearbitrators entering upon the reference, and held that this viewreceived support from Louis Dreyfus and Co. s case (supra)which matter according to this Calcutta authority stood clinchedbeyond doubt by the Supreme Court authority in Hari Shankarlal s case (supra) in which the following observations appearand were relied upon being the majority view : "and in that event, after the expiry of the said tourmonths the arbitrators become functus officio unlessthe period is extended by Court under Section 28of the Act; such period may also be extended bycourt though the award has factually made. "thus, what was held in Hari Shankarlal s case (supra) isthat after the lapse of the statutory period of four months afterthe arbitrators entered upon the reference they became functusofficio and unless the time is extended by the Court under Sec. 28of the Act they cannot make the award and the same would bewithout jurisdiction, but if even after the making of such anaward the Court extends the time under Sec. 28 of the Act,the award becomes valid. It was on this analogy that the aforesaid Calcutta authority placed reliance and held against themaintainability of the petition for revoking the authority of anarbitrator pointing out that after the lapse of the statutory periodof four months the arbitrator becomes functus officio as a resultof which the question of revoking his authority could not arise. No other authority was cited by the learned counsel for respondent No. 1 in support of this proposition of law. The learnedcounsel for the petitioner has also not cited any authority to thecontrary. Anyhow, the learned counsel for respondent No. 1submits that he tried to search out but he could not find anyauthority to the contrary nor any other authority on this point. The contention of the learned counsel for the petitioner is thatthe analogy derived by the Calcutta High Court from Hari Shankarlal s case (supra) could not have been reasonably applied,inasmuch as the factors for the revocation of the authority of anarbitrator u/s. 11 could be different from the ones meant for theextension of time under Sec. 28 of the Act for the making andthe pronouncement of the award by the arbitrator where s onthe other hand it was urged by the learned counsel for respondent No. 1 that the factors in both the cases would be the. same. Under Sec. 11 of the Act the Court may, on the application ofanyparty to the reference, remove an arbitrator who fails to useall reasonable despatch in entering upon and proceeding withthe reference and making of the award or if the arbitrator hasmisconducted himself and the proceedings. Under Sec. 28 ofthe Act the Court may, if it thinks fit, whether the time formaking the award has expired or not and whether the awardhas been made or not, enlarge from time to time the time formaking the award. It would be seen that while under Sec. 11the power for removing the arbitrator is limited to the groundof his failure to use all reasonable despatch in entering uponand proceeding with the reference and making the award or hismisconduct, under Sec. 28 the discretion of the Court has notbeen limited by referring to any grounds therein and this powerof extension of time can be exercised not only before the expiryof the statutory period of four months but also thereafter andagain not only before the making of the award but also afterthe making of the award. Keeping these factors present in mindwe may come across cases where one party is not allowed tomake an application under Sec. II of the Act relying upon theview expressed in Arbn Hindusthan Steel s case (supra) it maybe possible that the award is made after the lapse of the statutory period of four months and the validity thereof on accountof the arbitrator having become functus officio may be removedby the Court extending the time under Sec. 28 of the Act formaking the award. In such cases the party who had desired tomake an application under. Sec. 11 of the Act for revoking theauthority of the arbitrator on the grounds specilied in that provision of law, would be left askance and helpless. In the. faceof the possibility of such a contingency which may arise quiteoften, the view taken in Arbn Hindusthan Steel s "case ( supra),with respect, does not appear to lay down the correct proportion of law and consequently the analogy of louis Dreyfus andco. s case (supra) and Hari Shankarlal s case (supra) (inaiorityjudgment) does not afford a proper guide for determining thepoint in hand and for the reasons referred to above what looksto be a more reasonable point of view is that an applicationunder Sec. 11 of the Act for revoking the authority of an arbitrator is maintainable even after the expiry of the staiutoryperiod of four months reckoned from the date of the arbitratorsentering upon reference. This view is, however, subject to theexception that if an application under Sec. 28 of the Act forextension of time lor making and pronouncing the award isrejected by the Court and then any party moves the Court forthe removal of the arbitrator. ( 4 ) FOR the purpose of deciding this petition on merits a fewdates would be of relevance. The arbitrator entered upon thereference vide letter dated 21-4-1981 whereby he called uponthe petitioner to file its statement of, claims together with thedocuments, if any, as part of the claim within 10 days of theteceipt. of this communication will) a copy to the N. D. M. C. Annexure p4 is this letter and it shows that copies of these. letters were sent to both the parties. ( 5 ) THE claim was filed by the petitioner before the arbitratoroil 25-4-1981. Though not finding any mention in the pleadlng. of this communication will) a copy to the N. D. M. C. Annexure p4 is this letter and it shows that copies of these. letters were sent to both the parties. ( 5 ) THE claim was filed by the petitioner before the arbitratoroil 25-4-1981. Though not finding any mention in the pleadlng. a letter dated 1-3-1982 was received by respondent No. 1 fromthe arbitrator staling that the petitioner had submitted Us statement of claims to him vide letter dated 24-4-1981 and a copyendorsed to the Municipal Engineer (East) N. D. M. C. , whereascounter-statements, if any. were still awaited from the N. D. M. Cand the N. D. M. C. was thereby requested to file the counter statements before the arbitrator within 7 days of the receipt ofthe said communication with a copy to the petitioner. ( 6 ) VIDE letter dated 12-3-1982 respondent No. 1 N. D. M. C. wrote to the arbitrator making grievance that it had not beensupplied with a copy of the claim of the petition. Then videletter dated 22-3-1982 (Annexure P-5) the arbitrator referringto respondent No. l s letter dated 1. 2-3-1982 called upon thepetitioner to furnish a copy of its claim to N. D. M. C. under intimation to him. . Thereupon the petitioner in its letter dated26-3-1982 (Annexure P-6) informed the arbitrator that thecopy of its claim had already, in fact, been given in the officeof respondent No. 1 Municipal Engineer (East), but as itsi Receipt had been denied, a copy of the daim along with documenis (Exts. Cl to C13) were being enclosed but it is pointedout by the learned counsel for the petitioner that they were notsent along with this forwarding letter to the arbitrator but weicsent to the Municipal Engineer (East) N. D. M. C. along with thei carbon copy of this forwarding letter as is obvious from theendorsement below this letter. It is, however, asserted in thereply to this petition by respondent No. 1 and also asserted atthe Bar during the course of arguments by the learned counselfor respondent No. 1 that respondent No. 1 had received thecopy of the petitioner s claim only on 4-6-1982 and the counterstatement by way of reply was filed by respondent No. 1 beforethe arbitrator on 6-7-1982. ( 7 ) THEREAFTER it was vide letter dated 21-1-1983 that thearbitraor proceeded to fix the date of hearing as 14-2-1983, buta week earlier, i. e. vide letter dated 7-2-1983 N. D. M. C, respondent No. 1 again sought adjournment of the hearing slating thatits counsel was busy in some other matter whereupon the arbitrator adjourned the hearing to 16-3-1983 vide letter dated10-2-1983 and in the meantime the petitioner had moved thispetition on 10-3-1983 for the revocation of the authority of thearbitrator. ( 8 ) ON the basis of the aforesaid dates it is contended by thelearned counsel for the petitioner that there is nothing to explainaway in any manner whatsoever much less in a reasonablemanner as to why the arbitrator kept quiet for such a long timebetween 25-4-1981 on which date the petitioner had submittedits claim to the arbitrator and 1-3-1982 when the arbitrator forthe first time called upon respondent No. 1 N. D. M. C. to file ifscounter-statements, if any, before him and this does constitutea valid ground of failure on the part of arbitrator to proceedwith the arbitration proceedings with all reasonable despatch. It need hardly be reminded that resort to arbitration by contesting parties is meant for the purpose of facilitating an early decision of their disputes and if that object is frustrated, and theresponsibility for that lies squarely upon the arbitrator, the arbitrator is to blame and he may be presumed to have misconducted himself and the proceedings by not utilising reasonably thetime at his disposal for the early resolving of the disputes anddifferences between the parties. ( 9 ) IT is pointed out by the learned counsel for respondentno. 1 N. D. M. C. that after the filing of the counter-statementsby respondent No. 1 beford the arbitrator on 6-7-1982 the arbitrator remained busy during the Asian Games (ASIAD) 1982and immediately being free from those additional duties ofnational importance the arbitrator vide letter dated 21-1-83requestedboth the parties to appear before him on 14-2-1983for hearing in the matter. 1 N. D. M. C. that after the filing of the counter-statementsby respondent No. 1 beford the arbitrator on 6-7-1982 the arbitrator remained busy during the Asian Games (ASIAD) 1982and immediately being free from those additional duties ofnational importance the arbitrator vide letter dated 21-1-83requestedboth the parties to appear before him on 14-2-1983for hearing in the matter. In the reply filed by respondent No. 1to this petition this vague assertion has not been furnished withnecessary details regarding the actual period during which hewas assigned additional duties in ASIAD 1982 nor thenature of his duties so as to show the extent and urgency thereof so as to enable the Court to come to the conclusion if he wasreally so much and so urgently busy in those additional dutiesthat he could not find time to hold the arbitration proceedingsand to make the award at the earliest. Even the affidavit deposed to by the arbitrator in support of the reply of respondentno. 1 in this petition does not furnish any such details and inthe absence of the same the Court is not in a position to givea favourable finding in favour of respondent No. 1 regardingthe arbitrator having remained so busy and urgently so as toavoid the bringing to a close the arbitration proceeding. It isnot believable that the petitioner did not supply copy of itsclaim submitted before the arbitrator, to respondent No. 1 atthe first instance when it filed the claim on 25-4-1981. ( 10 ) UNDER the circumstances, the arbitrator has failed to useall reasonable despatch in bringing to a close the arbitrationf proceedings and making the award and has misconducted himself and the proceedings. ( 11 ) THE learned counsel for respondent No. 1 then contendsthat if respondent No. 1 N. D. M. C. had failed to file the replyto the claim of the petitioner for a long time the petitioner oughtto have reminded the arbitrator within a reasonable time toissue a notice to respondent No. 1 to file the reply to the claimof the petitioner and as the petitioner failed in that regard, itcannot claim the removal of the arbitrator. This contentioncannot be accepted as after the filing of its claim before thearbitrator it was for the arbitrator to move further in the arbitration proceedings and not for the petitioner to remind him ofwhat he was expected to do himself. This contentioncannot be accepted as after the filing of its claim before thearbitrator it was for the arbitrator to move further in the arbitration proceedings and not for the petitioner to remind him ofwhat he was expected to do himself. The contention of thelearned counsel for respondent No. 1 is based upon the decisionof the House of Lords reported in Bremer Valkan Schiffbau andmaschinenfabrik v. South India Shipping Corporation (1981)All ER 289 (at pp. 299 and 301 ). The relevant parareads as follows : ". . . . . "the obligation is, in my view, mutual it obligeseach party to co-operate with the other in takingappropriate steps to keep the procedure in the arbitration moving, whether he happens to be the claimant or the respondent in the particular dispute. . . . . if what is done voluntarily by way of preparation isdone so tardily that it threatens to delay the hearingto a date when there will be a substantial risk thatjustice cannot be done, it is in my view a necessaryimplication from their having agreed that the arbitrators should resolve their dispute that both parties,respondent as well as claimant, are under a mutualobligation to one another to join in applying to thearbitrators for appropriate directions to put an endto delay. "the arbitrator entered upon the reference on 21-4-81 andfor the first time vide letter dated 1-3-1982 he called upon respondent No. 1 to file the reply within 7 days of the receipt ofhis letter, further informing therein that the petitioner had filedits claims on 25-4-1981. It is also stated in this letter that thecounter-statement, if any, was still awaited from the N. D. M. C. If the respondent did not file the reply to the claim of the petitioner before the arbitrator within a reasonable time of the filingof the claim by the petitioner, the petitioner could reasonablybe under an impression that respondent No. 1 NDMC did notwant to contest or resist its claim and in this view of the mattercould not be put to any sort of obligation or mutual obligationto remind the arbitrator to issue any fresh notice to respondentno. 1 to file its reply to the petitioner s claim. 1 to file its reply to the petitioner s claim. The aforesaidobservations of the House of Lords came up for considerationbefore the Court of Appeal in Andre and Cie v. Marine Transocean (1981) 2 All ER 993 (at pages 996 and 997) by Lorddenning MR wherein ship owners and the charters had appointed one arbitrator each in the year 1969 as per the terms of thearbitration clause whereafter nothing was done by either partyfor about 8 years. The shipowners were the claimants whowere to claim money from the charters for the loss. The shipowners after keeping quiet for about 8 years sent a letter throughsolicitors to charters in December 1977 which was receivedby the charterers on 3-1-1978. The question urged was thatif the claiment did not file its claim before the arbitrator norsought any directions from the arbitrators, under the principleof mutual obligation propounded by the House of Lords, therespondents-charterers ought to have moved the arbitrators forthat purpose. Commenting upon this Lord Denning MR observed ,as follows : this mutual obligation comes as something of a surprise to everyone; especially to the denizens of Essexcourt and St. Mary Axe. Nothing of the kind waspropounded before the judge, or before us in thecourt of Appeal. It appears for the first time in thespeech of Lord Diplock in the House of Lords. Itis, I suppose, too late for any wordsof mine to makeany difference. It is for us to come to terms withit. It is said to be based on an implication. Assuch it goes beyond anything that I have hithertounderstood. To my way of thinking the implicationis neither obvious, nor reasonable, nor necessary. Nor does it accord with rality. If the claimant doesnot pursue his claim, if he makes no application tothe arbitrator, it is said that the respondent is boundhimself to do so. Whoever hears of a respondentdoing any such thing ? Take this very case. Itwas not the charters who were claiming anymoney. It was the owners. If they wanted topursue their claim, they should have taken steps toput in their points of claim, or to apply for directions. It was not for the charterers to do so. Justas the owners started the arbitration by taking thefirst step. So they should have continued it bytaking the second or succeeding steps as they camearound to be done. If they wanted topursue their claim, they should have taken steps toput in their points of claim, or to apply for directions. It was not for the charterers to do so. Justas the owners started the arbitration by taking thefirst step. So they should have continued it bytaking the second or succeeding steps as they camearound to be done. As we all know, the cases arelegion in which arbitrators are appointed and nothingmore is heard of the case. Sometimes it is settled. At other times the claimant simply lets it drop, andthe respondent does nothing. Does that mean thatthe claimant can revive it five, eight, fifteen or twentyyears later on ? I cannot believe that the House oflords intended any such thing. I think that we musthave misunderstood the ruling in some way or other. Take this very case. If there really is a mutualobligation, the charterers, at the end of 1969,ought themselves; to have roused the sleeping ship-owners or have applied to the arbitrators for directions; and, as they did not do so, they are now in1981 being faced with an arbitration, when all theirevidence is lost. It would be most unjust to putsuch an obligation on the charterers, which to onehad ever thought of before. " ( 12 ) AS in the case the respondent/non-claimant could notbe under an obligation to take steps for the filing of the claimby the claimant on the failure of the claimant to act in thatbehalf, similarly the petitioner in the case in hand could not beexpected nor was it under any just obligation to rouse respondent No. 1 N. D. M. C. from its inaction in the matter of tilinga reply to its claim as the petitioner could be under an expectation that its claim may not be contested by respondent No. 1. ( 13 ) IN view of the above discussion the petitioner succeedsand consequently the arbitrator A. S. Khullar is liable to beremoved. ( 13 ) IN view of the above discussion the petitioner succeedsand consequently the arbitrator A. S. Khullar is liable to beremoved. ( 14 ) THE learned counsel for the petitioner has contendedthat on the removal of respondent No. 2 A. S. Khullar as Arbitrator the power rests with the Court to appoint a new Arbitrator under S. 12 (2) (a) of the Act whereas according to thelearned counsel for respondent No. 1 N. D. M. C. it is not for thecourt to appoint a new Arbitrator but the power of appointinga new Arbitrator remains with the Administrator of N. D. M. C. as according to the arbitration clause the President or the Administrative Head if there happens to be no President at therelevant time can fill up the vacancy of an Arbitrator originallyappointed if the vacancy is caused when the Arbitrator is transferred or vacates his office or is unable to act for any reason. This clause does not specifically mention the vacancy caused bythe removal of the arbitrator by the Court. Under See. 12 (2) (a) when the Court removes the sole arbitrator or all the arbitrators the Court may, on the application of any party to thearbitration agreement, either appoint a person to act as solearbitrator in the place of the person or persons displaced ororder that the arbitration agreement shall cease to have effectwith respect to the differences referred. Sub-section (3) ofs. 12 provides that the person appointed under this section asan arbitrator or umpire shall have the like power to act in thereference and to make an award as if he had been appointedin accordance with the arbitration agreement. It would benoted that the provision of law contained in Sec. 12 has notbeen subjected to an agreement to the contrary between theparties, as a result of which it is clear that even if the arbitrationagreement provides for the filling up of the vacancy by a namedperson even in the case of a vacancy caused by the removal ofthe arbitrator under the orders of the Court, the same wouldbe invalid being in contravention of Sec. 12 of the Arbitrationact which gives power to the Court alone to fill up the vacancyon the removal of an arbitrator by Court. Thus, the arbitrationagreement even though talking of the occurrence of vacancy forany reason, the same cannot and would not include the vacancycaused by the removal of the arbitrator under the orders of thecourt and consequently the President or the Administrative Headof N. D. M. C. shall not have the power to appoint a new arbitrator after the Administrator initially appointed by him is removedby the Court, and the power of appointing the new arbitratorrests with the Court under S. 12 of the Act. The authoritywest Bengal Essential Commodities Supply Corporation Ltd. v. M/s. International Trading Corporation of India AIR 1984calcutta 313 (6) relied upon by the learned counsel for respondent No. 1 N. D. M. C. has no applicability to the facts of thepresent case wherein the arbitrator initially appointed is beingremoved by the Court whereas in the aforesaid authority thearbitrator had not been removed by the Court. It is thus Courtalone which is competent to appoint a new arbitrator and notthe authority referred to in the arbitration agreement. Mr. O. P. Mittal, Retired Chief Engineer, C. P. W. D. ,s-253, Panchsheel Park, New Delhi is appointed the new Arbitrator to decide the disputes and differences between the parties. His feesis tentatively fixed at Rs. 2,000 to be shared equally by boththe parties. Intimation of this order be sent to the new Arbitrator immediately. There shall, however, be no order as tocosts of this petition.