JUDGMENT A.K. Sikri, J. (Oral)-Airport Authority of India (hereinafter referred to as the AAI) had invited tenders for construction of three Hangers and ancillary building of IGI Airport SH: Pavement Work. M/s. Atlanta Construction Company (I) Ltd. (hereinafter referred to as the petitioner) was also one of the tenders who submitted its bid. After scrutiny of these tenders, work was awarded to the petitioner vide letter dated 20th July, 1988. Thereafter, agreement dated 27th July, 1998 was executed. Some disputes arose between the parties. According to the petitioner, there were various reciprocal arrangements and AAI failed to fulfil its obligations under the contract which led to delay in the execution. On the other hand, AAI blamed the petitioner for not doing the work as per the schedule. Work was, therefore, prolonged and was completed much after the stipulated date. The petitioner raised various claims and wanted AAI to make payment. The AAI refused to make payment on the ground that no such amounts were paid. In these circumstances, arbitration clause was invoked for appointment of an Arbitrator. Since no Arbitrator was appointed by the AAI, petition under Section 20 of the Arbitration Act was tiled in his Court. After receipt of notices in their petition Sh. W.O. Oangad was appointed as the Arbitrator. On his appointment the petitioner tiled the statement of claim along with documents. The proceedings before him commenced when on his appointment the learned Arbitrator issued notice dated 24th July 1995 to the parties. As under the provisions of Arbitration Act, 1940, award is to be given within four months and the proceedings could not be completed within four months, parties were extending the time by mutual consent. Last extension was up to 25th April, 1996. Thereafter the petitioner refused to give its consent. When the matter came up before the learned Arbitrator on 29th April, 1996, the learned Arbitrator for want of further extension passed the order that since time for making the award had expired the interested party may approach the Court for getting the time enlarged suitably. 2. In these circumstances, while the AAI has tiled application under Section 28 (OMP No. 110/97) for enlargement of time, the petitioner has tiled application under Sections 5, 11 and 12 of the Arbitration Act, 1940 for removal of the Arbitrator and for appointment of another Arbitrator in his place. 3. 2. In these circumstances, while the AAI has tiled application under Section 28 (OMP No. 110/97) for enlargement of time, the petitioner has tiled application under Sections 5, 11 and 12 of the Arbitration Act, 1940 for removal of the Arbitrator and for appointment of another Arbitrator in his place. 3. It would be appropriate to deal with the application of the petitioner as the result of the application of AAI would depend upon the outcome of the petitioners application. There are three grounds on the basis of which the petitioner wants removal of the authority of the learned Arbitrator, namely, (a) the Arbitrator is considering the counter-claim of the respondent though those claims are not permissible; (b) there is unnecessary delay in proceedings as the AAI is not allowing the proceedings to go on smoothly and the Arbitrator is yielding to their pressure tactics; (c) the petitioner has submitted objections to the admissibility of the counter-claims of the respondent and the delaying tactics adopted by the AAI, however, the learned Arbitrator is not considering those objections. 4. In order to appreciate the aforesaid contentions, we may first take note of the events in chronological order as they took place which include particularly the hearings before the learned Arbitrator. These are stated in detail by the AAI in their reply as well as their application under Section 28 of the Arbitration Act. 1940 and factual correctness thereof is not in disputed: "24.7.95 Learned Arbitrator issued notice to the parties directing respondent No. I to file its statement of facts within 15 days and for the petitioner to file its counter statement of facts within 15 days thereafter. 23.8.95 Respondent No. I filed its statement of facts and claims and therein sought leave to amend, alter or modify the claimed sums in the light of counter statement to be received from the petitioner and production/inspection of the documents as requested by it. 23.9.95 Arbitrator directed respondent No. 1 to supply legible copies of Exhibits C-6, C-7, C-66 and C-68 annexed to its Statement of Claims. 18. 10.95 Arbitration hearing-Respondent No. I did not appear, Petitioner filed its Counter Statement of Facts and the Arbitrator directed for respondent No. I to file its Rejoinder along with documents if any within 15 days of the receipt of the CSF and fixed the next hearing for 1st and 2nd December, 1995. 1. 18. 10.95 Arbitration hearing-Respondent No. I did not appear, Petitioner filed its Counter Statement of Facts and the Arbitrator directed for respondent No. I to file its Rejoinder along with documents if any within 15 days of the receipt of the CSF and fixed the next hearing for 1st and 2nd December, 1995. 1. 11.95 Respondent No.1 filed an application for substituting the name of petitioner as Airports Authority of India and consequential amendment in its Statement of Claims by adding para 2(A). 1. 12.95 Arbitration hearing-Respondent No.1 again did not appear and also did not file its Rejoinder to CSF - Arbitrator fixed the next hearing for 26 and 27 December, 95. 5. 12.95 Petitioner received from respondent No. 1 its rejoinder dated 28.11.95 and also legible copies of aforementioned Exhibits. 26.12.95 At the hearing Petitioner filed its documents Exhibits R-I to R56 and it was noted that the time for making the award has been enlarged to 25.4.96 with consent of both the parties and after hearing some arguments the parties were directed to file their admission/denial of documents by 27.12.95. 27.12.95 Arbitrator allowed application of respondent No. I for substituting the name of petitioner as Airport is Authority of India and consequential addition of para 2(A) in its Statement of Claims and in view of which amendment and legible copies of the aforementioned exhibits supplied by respondent No.1 directed that if the petitioner wants to effect any change or modification of its CSF he may do so by 15.1.96 and both the parties may file documents, if any, by 15.1.96 and the admission/ denial of documents by 30.1.96 and the next hearings were fixed with the consent of both the parties for 14, 15 and 16 March, 1996. 13. 1.96 Petitioner filed its Amended Counter Statement of Facts along with Exhibits R-57 to R-61. 16. 1.96 Respondent No.1 filed an application objecting to the admissibility and also existence and contents of Exhibits R-1 to R-56 filed by the petitioner at the hearing on 26.12.95 and to the Amended CSF along with Exhibits No. R-57 to R-61 and asked the Arbitrator to communicate his decision in the matter sufficiently in advance to enable respondent No. 1 to decide whether to attend the next hearing fixed in March 1996 and to take appropriate action to protect the interest to it. 30.1.96 Petitioner filed reply to respondent No. 1s application dated 16.1.96 referring to the record of the arbitration proceedings and stating that the Amended CSF has been filed in pursuance of the directions made and as permitted by the Arbitrator at the hearing on 27.12.95. 19. 2.96 Chief Engineer (ARC) referred the Counter Claims raised by the petitioner to the learned Arbitrator as already appointed vide letter dated 14.7.95 to decide and make his award, subject to admissibility under the arbitration Clause 25 of the Agreement. 23.2.96 Respondent No.1 filed an application reiterating the contents of its application/letter dated 16.1.96 and its prayer therein that the Amended CSF together with the documents submitted by the petitioner could not be taken cognizance of and requesting the Arbitrator for his decision. 14. 3.96 At the arbitration hearing both the parties were present and the Arbitrator noted that the petitioner had filed the amended and admission/denial of documents but the respondent No. 1 had not filed any further documents nor admission/denial of the documents and after hearing arguments of both the parties on the various letters/applications/ documents and on the applicability of the Arbitration and Conciliation Ordinance directing that- (a) Respondent No. 1 shall file a revised/Amended Rejoinder considering the original CSF as well as the Amended CSF filed by petitioner, by 30.3.96 and also admission/denial of documents filed by the petitioner. (b) Petitioner shall file within a week of receipt of the Rejoinder indicate the witnesses if any, to be produced and in that case file affidavits from them/him and send copy thereof to respondent No.1. (c) Petitioner shall file his SF for counter claims as referred to the Arbitrator by Chief Engineer (ARC)s letter dated 19.2.96 by 30.3.96 along with documents and send a copy to respondent No.1. (d) Respondent No.1 shall file his reply to SF aforesaid along with documents, if any, and also preliminary objections, if any, within 15 days of receipt of SF. (e) Petitioner shall file its Rejoinder within 15 days of the receipt of CSF for the counter claims from the respondent No. 1 and in view of the aforesaid directions the hearings fixed for 15 and 16 March 96 were cancelled. 18. (e) Petitioner shall file its Rejoinder within 15 days of the receipt of CSF for the counter claims from the respondent No. 1 and in view of the aforesaid directions the hearings fixed for 15 and 16 March 96 were cancelled. 18. 3.96 Respondent No.1 filed an application contending that it has lost faith in the impartiality of the learned Arbitrator and that the directions given during the hearing held on 14.3.96 had convinced it about the apprehension of bias shown against respondent No. I and saying that in all fairness we (respondent No.1) shall expect Your Honour to decline to continue with the reference when one party has shown lack of confidence in the forum and asking the learned Arbitrator to "acknowledge receipt and let us (respondent No. 1) know your (Arbitrators) decision so as to enable us (respondent No. 1) to take further action in the matter. 28.3.96 Petitioner filed before the learned Arbitrator its Statement of Facts and Counter Claims and send a copy thereof to the respondent No. 10.4.96 Respondent No.1 sent an application making allegations that the learned Arbitrator had been openly favouring the petitioner and the respondent is not being allowed to put forth its case properly and that it had shaken its faith in the learned Arbitrator and no justice could be expected from him and requested the learned Arbitrator not to proceed with the matter and decline to act as an Arbitrator and that otherwise also the further proceedings cannot be concluded as the time for making and publishing the award has expired. 20. 4.96 Petitioner submitted reply to respondent No. 1s application dated 18.3.96 and therein referred to the facts relating to the counter claims raised by it and referred to arbitration and also referring to the record of the arbitration proceedings requested the learned Arbitrator to fix the dates for hearing so as to complete the arbitration at earliest. 29.4.96 Learned Arbitrator informed the parties that since the time for making the award that was extended upto 25.4.96 has expired the interested party may approach the Court for getting the time enlarged suitably and supply him a copy of the Courts order so as to proceed further in the matter." 5. It is clear from the above that while appointing the Arbitrator and referring the matter the appointing authority vide letter dated 14th July. It is clear from the above that while appointing the Arbitrator and referring the matter the appointing authority vide letter dated 14th July. 1995 had referred counter claims as well which may be preferred by the AA I. In these circumstances merely because the learned Arbitrator was referring the counter claims is not a ground for his removal. Of course, in spite of the aforesaid reference order, the petitioner may have grounds to plead that such counter claims should not be considered. It is for the learned Arbitrator to decide the issue and I am refraining myself from doing the same as it is not within the domain of the present proceedings. Fact remains that in view of the aforesaid reference order, the learned Arbitrator could not have refused the filing of the counter claims by the AAI and would have had to decide about the admissibility. 6. Details of the proceedings are already extracted above giving account of various dates of hearing fixed by the learned Arbitrator. It is clear that the Arbitrator was giving short dates with an intention to proceed with the matter. The record does not show that the learned Arbitrator was allowing to delay the proceedings. In fact, at some point of time it is because of the objections raised by the petitioner, which objections were to be considered by the learned Arbitrator, that some of the hearings were consumed in the process and still the Arbitrator has made endeavour to fix short dates. The manner in which the case has progressed also militates against the plea of the petitioner that his objections are not being considered. What is also important to note is that on 24th July, 1996 the learned Arbitrator issued notice to the parties whereby the petitioner was directed to file its statement of facts within 15 days and the AAI was directed to file its counter statement of fact within 15 days thereafter. When the counter claims were filed, the petitioner took objection to the admissibility thereof. In view of this objection, the appointing authority again specifically referred the counter claims vide reference order dated 19th February 1996 to the same arbitrator and asked him to decide these counter claims subject to the admissibility under the arbitration clause 25 of the agreement. When the counter claims were filed, the petitioner took objection to the admissibility thereof. In view of this objection, the appointing authority again specifically referred the counter claims vide reference order dated 19th February 1996 to the same arbitrator and asked him to decide these counter claims subject to the admissibility under the arbitration clause 25 of the agreement. In view of all this, no case is made out by the petitioner for removal of the Arbitrator as the ingredients of Sections 11 and 12 of the Arbitration Act are not fulfilled at all. 7. This Court in the case of Bharat Heavy Electricals Ltd. v. Mis. BST Engineering Services, 56 (1994) DL T 47, categorically held that when the counter claims were filed, the Arbitrator ought to have adjudicated upon the same. Similarly, the Supreme Court in the case of Punjab Housing Development Board and Anr. v. Ludhiana Builders and Engineers (P) Ltd., 2001 (3) Arb. L.R. 29 (SC), set aside the award when it found that the award was totally silent about the counter claims raised before the Arbitrator and held that refusal to consider the claim amounted to legal misconduct and award suffered from manifest error due to non-consideration thereof. 8. In Setech Electronics Ltd. v. K.N. Memani and Anr., 1999 (1) Arb. L.R. 446 this Court, while dealing with the application under Sections 5, 11 and 12 of the Arbitration Act and dealing with the question of revocation of the authority and removal of Arbitrator held that the applicant must prove the real likelihood of bias. Exercise of discretion under Section 5 should not be the rule but exception. The application is accordingly dismissed. 9. Consequently, the application filed by the AAI is allowed. Further, time for making the award is enlarged by another four months from the date when the learned Arbitrator fixes the next date of hearing after notice to the parties. Arbitration record be sent back to the learned Arbitrator to enable him to proceed further in the matter. Ordered accordingly.