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2000 DIGILAW 64 (HP)

SHUBH TIMB STEELS LTD. v. STATE OF H. P.

2000-03-31

M.R.VERMA

body2000
JUDGMENT M. R. Verma, J.: By this application the petitioner prays for removal of the Arbitrator appointed by this Court order date June 25, 1993 passed in Civil Suit No. 72 of 1993. 2. The removal of the Arbitrator is prayed for on the ground that the L Arbitrator though entered upon the reference and called upon the parties to file their respective claims in the year 1993 pursuant to which the petitioner filed the statement of fact and claim on September 29,1993, the respondents filed reply there to on June 24,1994 and the rejoinder was filed by the petitioner on July 17 1994, yet the Arbitrator had not concluded the arbitration proceedings which are still at the stage of framing of issues where those were in the month of October 1994, though in between the Arbitrator asked the parties for re-construction of the records on January 24,1998. These averments made vide para 7 of the petition are duly supported by an affidavit. 3. The respondents in their reply have not disputed this state of affairs though it has been alleged that the proceedings are held up because of the conduct of the petitioner. 4. The Arbitrator was given opportunity of being heard by issue of a notice. However, he has not choosen to counter the allegations made in the petition regarding causing of inordinate delay in concluding the arbital proceedings. 5. I have heard the learned counsel for the parties and have also gone through the records. 6. It is evident from the contents of .the application that the arbitration proceedings have not made any head way since the year 1994 till date. Keeping the arbitration proceedings at the initial stage without making any head way during this long period of six years in itself is indicative of the fact that the Arbitrator has failed to use all reasonable despatch in proceedings with the reference and making an award. The averments made vide para 7 are not even otherwise seriously disputed by the respondents in their reply. It is not their case that the Arbitrator has taken necessary steps and has not neglected to conclude the proceedings at any point of time. The averments made vide para 7 are not even otherwise seriously disputed by the respondents in their reply. It is not their case that the Arbitrator has taken necessary steps and has not neglected to conclude the proceedings at any point of time. Though it is averred in the reply that the proceedings are held up because of the objections of the petitioner regarding continuation of the proceedings raised on November 15, 1995, yet evidently it does not seem to be true ft r the reason that it was on January 24, 1998 that the parties were required by the Arbitrator to re-construct the record, but nothing appears to have been done even thereafter. It is implicit in the asking of the Arbitrator for re-construction of the record of the Arbitration proceedings conducted till the stage of framing of the issues which has been lost Evidently it is a case of neglecting the proceedings and failure to make an award with reasonable dispatch. Once such a situation has occurred, the provisions of Section 11 of the Arbitration Act, 1940 (here-after referred to as the Act) are attracted. Section 11 reads as follows: "11. Power to Court to remove arbitrators or umpire in certain circumstances. (1) The Court may, on the application of any party to a reference, remove an arbitrator or umpire who fails to use all reasonable despatch in entering on and proceeding with the reference and making an award. (2) The Court may remove an arbitrator or umpire who has misconducted himself or the proceedings. (3) Where an arbitrator or the umpire is removed under this section, he shall not be entitled to receive any remuneration in respect of his services. (4) For the purposes of this section the expression "proceedings with the reference" includes, in a case where reference to the umpire becomes necessary, giving notice of that fact to the parties and to the umpire." 7. It is plain from the reading of sub-section (1) supra that the Court has wide powers to remove the Arbitrator if he neglects to proceed with the reference and making an award. The delay of almost six years in not concluding the proceedings and making the award as aforesaid is a neglect of the magnitude that the Arbitrator in this case is liable to be removed. 8. The delay of almost six years in not concluding the proceedings and making the award as aforesaid is a neglect of the magnitude that the Arbitrator in this case is liable to be removed. 8. As a result, this application is allowed and the Arbitrator appointed by this Court vide order dated June 25,1993 passed in Civil Suit No. 72 of 1993 (Financial Commissioner (Revenue) Government of H.P.) is ordered to be removed as an Arbitrator. 9. The parties agree that any one of the other Financial Commissioners may be appointed Arbitrator in the matter. Accordingly, Financial Commissioner (Appeal) Himachal Pradesh, Shimla is appointed Arbitrator for the purpose. It is expected that so appointed Arbitrator will conclude the arbitration proceedings and make an award as expeditiously as possible. Application Allowed