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2005 DIGILAW 137 (DEL)

OCEAN KNIGHT COMPANY LTD. v. MMTC LIMITED

2005-02-04

PRADEEP NANDRAJOG

body2005
( 1 ) THE undisputed facts between the parties are that on a dispute surfacing between the petitioner and respondent No. 1 matter required to be arbitration. Each contasting patty had a right to nominate one arbitrator. Petitioner nominated Mr. K. P. Patel, respondent no. 2 as the Arbitrator. Respondent No. 1 nominated Capt. D. K. Verma, respondent no. 3 as the arbitrator. It is further the admitted position which is emanating from the record that respondent No. 3 sent a draft award to his co-arbitrator, respondent No. 2. Respondent No. 2 had some problem with the draft award in as much as he did not concur. ( 2 ) IT was expected of respondent No. 2 and respondent No. 3 to have referred the matter to am Umpire if there was dis-agreement between the two. ( 3 ) FOR unexplainable reasons, respondent no. 2 and respondent No. 3 exchanged letters with each other as if one was to justify the draft award and the other was to find fault with it. ( 4 ) IT was expected of respondent No. 2 to have responded to the communication of respondent No. 3 when it was specifically pointed out to him that time extended by the parties for publishing the award was expiring. ( 5 ) BE that as it may it is not within the scope of the present proceedings to decide whether respondent No. 2 is at fault or whether it is respondent No. 3 who is to be blamed for the reason that respondent No. 2 and respondent no. 3 are the nominated arbitrators. ( 6 ) THE fact of the matter remains that respondent No. 2 and respondent No. 3 could neither agree to a joint award and also did not refer the dispute to an Umpire. The result is that there is no award in the eyes of law. ( 7 ) LEARNED counsel for respondent No. l draws attention of this court to a judgment of this court reported as AIR 1984 Delhi 235 m/s. Jamna Auto Industies Vs. UOI. Said judgment relates to an issue which predicates itself on the removal of an arbitrator. ( 8 ) PRESENT petition being under Section 5, 11 and 12 of the ARBITRATION ACT, 1940 prays for removal of respondent No. 3 as an Arbitrator. UOI. Said judgment relates to an issue which predicates itself on the removal of an arbitrator. ( 8 ) PRESENT petition being under Section 5, 11 and 12 of the ARBITRATION ACT, 1940 prays for removal of respondent No. 3 as an Arbitrator. But, from the facts as they have finally unfolded, it is apparent that respondent No. 3 had prepared a draft award and there was, thus, no occasion for removing respondent no. 3 but at the same time this court cannot lose sight of the fact that because of respondent No. 2 and respondent No. 3 arbitration proceedings could not reach the desired destination and the two arbitrators became functus officio due to the reason that time granted for publishing the award expired. Further the two did not nominate an umpire. ( 9 ) UNDER the circumstances, relief has to be moulded. Admittedly, the two nominated arbitrators have become functus officio. There has been a dead lock since 1992 when last hearing was held. ( 10 ) CONSIDERING the fact that a decade and a half has gone by, rather than requiring the parties to nominate their arbitrators, considering the past history of the present case, I appoint Justice Usha Mehra (Retd.) a retired judge of this court as a sole arbitrator to decide the disputes between the petitioner and respondent No. 1. It is made clear that the pleadings of the parties before respondent 2 and 3 would be the pleadings for the purpose of the claim and counter claim. if any. If the new arbitrator is unable to requisition the previous record of arbitration from respondent no. 2 and respondent No. 3 petitioner and respondent would co-operate in the reconstruction of the record. One further clarification. Claim and counter claim, if any, would continue to be the same as was before the previous arbitral panel. Petition disposed of. ( 11 ) NO costs. .