TARKAR CONSTRUCTION COMPANY v. U. P. STATE WAREHOUSING CORPORATION, LUCKNOW
2000-10-17
M.A.KHAN, SUDHIR NARAIN
body2000
DigiLaw.ai
SUDHIR NARAIN, M. A. KHAN, JJ. ( 1 ) THE petitioner seeks to quash the order of appointment of the arbitrator by the Managing director vide order dated 11. 10. 1999 (Annexure-8 to the writ petition) appointing Sri R. C. Saxena, Incharge General Manager (Recovery Section) U. P. State Warehousing Corporation as arbitrator in pursuance of the arbitration agreement and the order passed by the Managing director on 6. 11. 1999 rejecting the objection of the petitioner against the appointment of such arbitrator. The arbitration agreement reads as under : "all disputes and differences arising out of or in any way touching or concerning this agreement (except as to any matter the decision of which is expressly provided for in the contract) shall be referred to the sole Arbitration of the Managing Director, U. P. State Warehousing Corporation, lucknow and if the Managing Director is unable or unwilling to act as the sole arbitrator or some other person appointed by the Managing Director. U. P. Warehousing Corporation, lucknow, willing to act as such arbitrator. It will be no objection to such appointment that the person appointed is an employee of the Corporation that he had to deal with the matters to which the contract relates and that, is the course of his such employee of the Corporation, he had expressed views on all or any of the matter in dispute or difference. The award of such arbitrator shall be final and binding on the parties to this contract. It is a term of this contract that in the event of such arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act, for any reason, the U. P. State Warehousing Corporation, the time of such transfer, vacation of office or inability to act shall appoint another person to act as arbitrator in accordance with the terms of this contract such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. " ( 2 ) A dispute arose in respect of the payment of the bills submitted by the petitioner to the respondents. The Managing Director appointed Sri R. C. Saxena, as arbitrator.
" ( 2 ) A dispute arose in respect of the payment of the bills submitted by the petitioner to the respondents. The Managing Director appointed Sri R. C. Saxena, as arbitrator. The petitioner submitted an objection before the Managing Director of the U. P. State Warehousing corporation that he is an employee of the Corporation, he does not expect fair justice from him. This objection has been rejected by the Managing Director by the impugned order dated 6. 11. 1999. ( 3 ) WE have heard Sri H. N. Singh, learned counsel for the petitioner and Sri O. P. Singh, learned counsel for the respondents. ( 4 ) LEARNED counsel for the petitioner submitted that the Managing Director has appointed his own subordinate employee and that is itself a circumstance, which shows that the appointment is illegal. ( 5 ) THE above submission cannot be accepted in the facts and circumstances of this case. The arbitration agreement itself provides that the dispute shall be referred to the sole arbitration of the Managing Director, U. P. State Warehousing Corporation, Lucknow and if the Managing director is unable or unwilling to act as the arbitrator, he may appoint any other person as arbitrator. The petitioner cannot raise objection to such appointment on the ground that the person appointed is an employee of the Corporation. Section 12 of the Arbitration and conciliation Act, 1996, provides the grounds on which challenge to the appointment of an arbitrator can be made, which reads as under : "12. Grounds for challenge.-- (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. (2) An arbitrator, from the time of his appointment and through out the arbitral proceedings, shall, without delay, disclose to the parties in writing and circumstances referred to in sub-section (1) unless they have already been informed of them by him. (3) An arbitrator may be challenged only if- (a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or (b) he does not possess the qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by him, or in "whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.
(4) A party may challenge an arbitrator appointed by him, or in "whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made. " ( 6 ) THE petitioner in his objection did not indicate the circumstances, which give rise to justifiable doubts as to his independence or impartiality. The mere fact that a person is employee of the Corporation is itself not a ground to hold that such person is prejudiced in favour of the corporation. The Managing Director himself is an employee of the Corporation. If a person is appointed as an arbitrator, he is to act impartially and fairly and is not to act as an employee of a party who got him appointed as an arbitrator. The petitioner has not disclosed any other reason, which creates a doubt about his independence or impartiality. We do not find any reason to interfere with the impugned orders. ( 7 ) SECONDLY, the petitioner in the arbitration agreement had agreed that the Managing Director may appoint any person as an arbitrator and it will be no objection that he is an employee of the respondents. ( 8 ) THE next submission of the learned counsel for the petitioner is that the petitioner had submitted the bills for payment of certain dues and there is no dispute regarding certain items on which payment is to be made. ( 9 ) THE petitioner can submit representation before Managing Director, U. P. State Warehousing corporation, New Hyderabad. Lucknow, respondent No. 2 who will examine the matter and in regard to the amount which is undisputed, the petitioner shall be paid such amount expeditiously within two months from the date of submission of the representation. ( 10 ) THE writ petition is dismissed in regard to the appointment of the arbitrator but as regards for the payment of undisputed amount, the writ petition is disposed of with the directions given above. .