Judgment 1. This is an appeal against the order dated 20.01.2006 passed by the Sub Judge I, Katihar in Misc. Case No. 2/2004. 2. The appellant is the Unit Head, National Jute Manufacturers Corporation Ltd., Unit R.B.H.M., Katihar having its office at R.B.H.M. Jute Mills, Katihar and respondent No. 6 is the Director (Personnel), National Jute Manufacturers Corporation Ltd. having his office at Kolkata. 3. The appellant had to start a canteen in his mill premises for the workers. Tenders were invited for this. Pramod Kumar Agarwal (after whose death, during arbitration proceeding the respondents were substituted and who would hereinafter be referred to as the Contractor) filed tender. Thereafter through a letter, the contractor was directed to start the canteen. The contractor accordingly started the canteen. The case of the respondents is that the contractor started supplying food, breakfast, tea etc. as per concessional rate given by the management of the Mill. He was assured that subsidy would be paid after entering into proper agreement. Then, an agreement was entered into between the appellant and the contractor according to which the contractor was to be paid subsidy at the rate of Rs. 10,000.00 per month. But in spite of requests and legal notice, no subsidy was paid. The contractor hence sent an application to the Director (Personnel) (respondent No. 6) to settle the dispute of non-payment of subsidy as according to the agreement, all the dispute arising out of the agreement, were to be referred to the sole Arbitrator, the Director (Personnel), but in spite of reminder sent, no proceeding of arbitration was initiated. The contractor, hence, filed an application u/s. 8(2) of the Arbitration Act before the Sub Judge I, Katihar for getting the total amount of subsidy being Rs. 3,30,000.00 with interest, realised through arbitration. On the basis of that application the miscellaneous case was registered. 4. After notice, the appellant appeared and opposed the prayer of the contractor by filing a written statement contending, inter alia, that no arbitration agreement was filed along with the application as provided u/s. 8(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act). Though there was an agreement between the parties, there was no agreement to pay Rs. 10,000.00 per month as subsidy. In a meeting, a trade union leader had only suggested that the contractor should receive the subsidy of Rs. 10,000.00 per month. Though there was an agreement between the parties, there was no agreement to pay Rs. 10,000.00 per month as subsidy. In a meeting, a trade union leader had only suggested that the contractor should receive the subsidy of Rs. 10,000.00 per month. So, the matter of subsidy cannot be made a basis for reference to the arbitrator being not covered under the Arbitration Clause of the Agreement. 5. The learned Sub Judge then directed the parties to file lists showing the name of their arbitrators. On behalf of the respondents a list of two persons including Sri Deo Kumar Jha, Advocate, was filed. The appellant gave only the name of respondent No. 6 for appointment as only Arbitrator. The Court appointed Sri Deo Kumar Jha, Advocate and respondent No. 6 as the arbitrators. But in spite of the letters sent to respondent No. 6, he did not respond. The appellant was also ready to give the name of any person for appointment as arbitrator on his behalf. The learned Sub Judge, hence, in presence of both the parties appointed one Sri Anil Kumar Singh, Advocate, as the second arbitrator. 6. The two arbitrators, after concluding the arbitral proceedings, submitted an award on 16.09.2005 in favour of the respondents. The learned Sub Judge invited objection against the award. The appellant filed his objection on 3.12.2005. The learned Sub Judge after hearing the parties, by the impugned order rejected the objection. of the appellant, and by the same order after modification in the rate of interest confirmed the award and directed to prepare the final award and decree. 7. The impugned order has been assailed by the learned counsel for the appellant on various grounds. The main thrust of his submissions, however, is that the arbitrators were appointed in utter disregard of the provisions of the Act in as much as (i) the arbitrator Sri Anil Kumar Singh, Advocate. 7. The impugned order has been assailed by the learned counsel for the appellant on various grounds. The main thrust of his submissions, however, is that the arbitrators were appointed in utter disregard of the provisions of the Act in as much as (i) the arbitrator Sri Anil Kumar Singh, Advocate. was the counsel for Pramod Kumar Agarwal, when the application u/s. 8 of the Arbitration Act was filed, and he had bias against the appellant and was not impartial; (ii) as per Sec. 10 of the Act, when the number of arbitrators was not determined by the parties, the arbitral Tribunal should have only one arbitrator, but in this case two arbitrators have been appointed and that (iii) u/s. 11(5) of the Act only the Chief Justice of Patna High Court or any person or Institution designated by him could appoint an arbitrator, but in this case the Court without being an authorised person has appointed the arbitrators. The entire award is thus without jurisdiction. 8. His further submission is that the National Jute Manufacturers Corporation Ltd. had filed a reference u/s. 15(1) of the Sick Industrial Companies (Special Provision) Act, 1985 before the Board of Industrial and Financial Re-construction (B.I.F.R.) and the B.I.F.R. after holding enquiry had declared the Corporation as sick on 7.06.1993 and finally the Board u/s. 20(4) of the Act on 8.07.2004 directed that the Corporation should be wound up and the Calcutta High Court initiated the process of appointment of Official Liquidator and that, as provided u/s. 446 of the Companies Act, no suit or any proceeding can either be commenced or if pending on the date of winding up order, be proceeded except with the leave of the winding up Court. But in spite of the fact that it was brought to the notice of the Court of winding up order, the arbitration proceedings proceeded with and therefore, the award given by the arbitrators is invalid. 9. Learned counsel for the respondents, on the other hand, submitted that the appeal itself is not maintainable. His contention is that the orders, which are appealable, have been provided u/s. 37 of the Act. The impugned order is in fact a decree passed on the basis of award and there is no provision u/s. 37 of the Act of any appeal against a decretal order. 10. His contention is that the orders, which are appealable, have been provided u/s. 37 of the Act. The impugned order is in fact a decree passed on the basis of award and there is no provision u/s. 37 of the Act of any appeal against a decretal order. 10. His further submission is that the appeal is barred by limitation. 11. So far maintainability of this appeal, the impugned order, as already mentioned, shows that after the award was filed in Court by the arbitrators, the parties were informed by the Court to file objection, if any, and the appellant filed objection, and before accepting the award and making further orders, by the impugned order itself, the Court had rejected the objection. In the objection petition though it was not specifically prayed that the arbitral award be set aside but one of the grounds of objection was that in terms of Cl. 19 of the Agreement between the parties, the Director (Personnel), N.J.M.C. Ltd., alone was to be appointed as sole Arbitrator and his award only was binding. Therefore, in effect the objection petition was also for setting aside the arbitral award. So, when the learned Court below refused to set aside the arbitral award, the appeal is competent being covered by Cl. (b) of Sec. 37(i) of the Act. 12. Then, as regards the arbitral proceeding being hit by Sec. 446 of the Companies Act, Sec. 446(i) of the Companies Act provides that "When a winding up order has been made or the Official Liquidator has been appointed as provisional Liquidator, no suit or other legal proceeding shall be commenced or if pending at the date of winding up order, shall be proceeded with against the company except by leave of the Court and subject to such terms as the Court may impose." 13. The case of the appellant, as already mentioned is that B.I.F.R. after holding enquiry had declared the Corporation as sick and on 8.07.2004 had recommended that the Corporation be wound up and on this recommendation of the High Court at Kolkata ordered for the winding up of the Corporation. The case of the respondents, on the other hand, is that the above order of the High Court was set aside by the Division Bench of the High Court before passing of the impugned order. So, this is no ground to set aside the order. 14. The case of the respondents, on the other hand, is that the above order of the High Court was set aside by the Division Bench of the High Court before passing of the impugned order. So, this is no ground to set aside the order. 14. It is not clear from the record actually on which date the Hon ble Single Judge of Calcutta High Court had passed the order of winding up of the Corporation. But even if the order was passed before the arbitral proceeding commenced, and in view of Sec. 446 of the Companies Act, when the order of the single Bench was in force, the arbitral proceeding could not be legally proceeded. But it has been held by the Supreme Court in the case of Harihar Nath & Ors. V/s. State Bank of India & Ors., 2006 4 SCC 457 , that "even if the suit is proceeded with, without obtaining the leave of the Company Court, either not being aware of the order of winding up or ignoring the provisions of Sec. 446(i) the resultant decree will not be void but only voidable at the instance and option of the official liquidator of the Company". Therefore, in this case also at the instance of the appellant the award cannot be said to be invalid. 15. With regard to the appointment of arbitrators and the composition of Arbitral Tribunal, Cl. 19 of the Agreement reads thus :- "All questions, disputes and/or differences arising under or in connection with this Agreement or in any way touching or relating to or concerning the Agreement shall be referred to the sole arbitration of the Director (Personnel), N.J.M.C. Ltd. The award of the arbitrator shall be final and binding on the parties thereto." 16. Therefore, according to the Agreement both the parties had agreed that in case of differences between them, Agreement would be referred to the sole Arbitrator, the Director (Personnel) (respondent No. 6). The impugned order, however, shows that the Director (Personnel) in spite of repeated requests did not respond to act: as Arbitrator. Therefore, when there was arbitration clause, it is obvious that an Arbitrator was to be appointed. 17. The question, hence, is how the arbitrator could be appointed and how the Arbitral Tribunal could be composed. 18. The impugned order, however, shows that the Director (Personnel) in spite of repeated requests did not respond to act: as Arbitrator. Therefore, when there was arbitration clause, it is obvious that an Arbitrator was to be appointed. 17. The question, hence, is how the arbitrator could be appointed and how the Arbitral Tribunal could be composed. 18. The application for appointment of arbitrator was filed by the contractor in the Court of Sub-Judge on 28.01.2004, much after the coming into force of the Act. It is, hence, needless to say that the arbitrators had to be appointed and the Arbitral Tribunal had to be constituted under the provisions of the Act. 19. Sec. 10 of the Act reads thus : "Number of arbitrators- (i) The parties are free to determine the number of arbitrators provided that such number shall not be an even number; (ii) Failing the determination referred to in sub-sec. (1) the arbitral Tribunal shall consist of a sole member." 20. The relevant part of Sec. 11 of the Act regarding appointment of arbitrators are as follows : "Sec. 11. Appointment of arbitrators- (1) A person of any nationality may be an arbitrator unless otherwise agreed by the parties. (2) Subject to sub-sec. (6) the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub-sec. (2) in an arbitration with three arbitrators, each party shall appoint one arbitrator and two appointed arbitrators shall appoint the third arbitrator, who shall act as the Presiding arbitrator. (4) If the appointment procedure in sub-sec. (5) applies and (a) a party fails to appoint an arbitrator within 30 days from the receipt of a request to do so from the other party or (b) the two appointed arbitrators failed to agree on the third arbitrator within 30 days from the date of their appointment, the appointment shall be made upon the request of a party by the Chief Justice or any person or Institution designated by him, (5) Failing any agreement to in sub-sec. (ii) in an arbitration with a sole arbitrator if the parties fail to agree on the arbitrator within 30 days from the receipt of a request by one party from the other party to so agree, the appointment shall be made upon the request of a party to the Chief Justice or any person or Institution designated by him, (6) Where under an appointment procedure agreed upon by the parties- (a) a party fails to act under that procedure or (b) the parties or the two appointed arbitrator fail to reach an agreement expected of them under that procedure or (c) a person, including an Institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or Institution designated by him to take the necessary measure unless the agreement on appointment procedure provides other means for securing the appointment." 21. Therefore, in view of Sec. 10 when the parties had not determined the number of arbitrators, the Arbitral Tribunal shall consist of only one member. In this case, in the agreement, the number of arbitrators to be appointed has not been specifically mentioned. It is only mentioned that the Director (Personnel) would be the sole Arbitrator. Therefore, when the Director (Personnel) was not willing to act as arbitrator, only one arbitrator was required to be appointed in this case, when two arbitrators have been appointed, which is also a even number not permitted under the Act. 22. Then, in this case the agreement does not provide for any procedure for appointment of arbitrator. Therefore, when the Director (Personnel), N.J.M.C. did not respond to the requests of the respondents in view of Sec. 11(2)(v) of the Act, the contractor shall have approached the Chief Justice or any person/institution designated by him to appoint arbitrator, but the Sub-Judge himself has appointed the arbitrators when there is nothing to show that he was designated by the Chief Justice to appoint arbitrator. Hence, it is clear that very appoint ment of the arbitrators, whether they are impartial or not, was patently illegal. So, the award made consequent upon such illegal, appointment, would be invalid and non-est. 23. Though in the Arbitration Act of 1940 u/s. 30 an award could be set aside if it has been improperly procured or is otherwise invalid. Hence, it is clear that very appoint ment of the arbitrators, whether they are impartial or not, was patently illegal. So, the award made consequent upon such illegal, appointment, would be invalid and non-est. 23. Though in the Arbitration Act of 1940 u/s. 30 an award could be set aside if it has been improperly procured or is otherwise invalid. Under the present Act of 1996, however, there is no such provision. 24. The question, hence, is whether this is a ground to challenge of the award. 25. Under Sec. 34 of the Act provides grounds for setting aside the arbitral award, and an arbitral award can be set aside only on any of those grounds. In this case, the relevant ground which is attracted in Cl. 2(v) which reads thus : "Section 34(2)(v)- The composition of arbitral Tribunal or arbitral procedure was not in accordance with the agreement of the parties unless such agreement was conflict with the provision of this part from which the parties cannot derogate or failing such agreement, was not in accordance with this part." 26. In the case of O.N.G.C. Ltd. V/s. Saw Pipes Ltd., AIR 2003 SC 2629 , the Supreme Court has observed that the ingredients of Cl. (v) are as under : The Court may set aside the award. (i) (a) if the composition of the arbitral Tribunal was not in accordance with the agreement of the parties; (b) failing such agreement, the composition of the arbitral trial was not in accordance with Part I of the Act (i.e. Sec. 2 to 42). (ii) If the arbitral procedure was not in accordance with (a) the agreement of the parties (b) failing such agreement, the arbitral procedure was not in accordance with Part I of the Act. 27. It has further been observed that at the same time, agreement for composition of Arbitral Tribunal or arbitral procedure should not be in conflict with the provisions of the Act from which the parties cannot derogate. 28. In this case, regarding composition of the Arbitral Tribunal, it is simply mentioned that the Director (Personnel) would be the sole Arbitrator; and it has already been pointed out that the arbitrators were appointed in this case in violation of provision of Ss. 10 and 11 of the Act. 29. 28. In this case, regarding composition of the Arbitral Tribunal, it is simply mentioned that the Director (Personnel) would be the sole Arbitrator; and it has already been pointed out that the arbitrators were appointed in this case in violation of provision of Ss. 10 and 11 of the Act. 29. Hence, this was a good ground for the learned Sub Judge for setting aside the award, which has not been done. So, the order refusing to set aside the award is liable to be set aside and consequently the remaining portion of the impugned order would become Ineffective. 30. This appeal was filed on 28.04.2006 when the impugned order was passed on 20.01.2006. The period of limitation is 90 days. The delay in filing the appeal is thus only of a few days. But it appears that the Memo of Appeal was not accompanied with the certified copy of the order and the same was filed on 26.02.2007. The appellant hence has filed a petition u/s. 5 of the Limitation Act for condonation of delay. The respondents filed its rejoinder stating that no good reason has been assigned for the delay. 31. According to the petition, u/s. 5 of the Limitation Act, after passing of the impugned order the appellant applied for certified copy of the order on 15.02.2006 and the same was supplied on 22.02.2006. It is further mentioned therein that the appeal was listed before the Joint Registrar on 28.11.2006 with a report that certified copy of the judgment to be filed. But as the learned counsel for the appellant did not mark the matter, the appellant could not know about it and only in February, 2007 when application for stay was not being listed, he could realise that the order of the Joint Registrar has not been complied with. Again the matter was listed before the Joint Registrar on 23.02.2007 for filing fresh certified copy of the order and the order dated 28.10.2006 was modified to that extent. The fresh certified copy of the order was filed on 26.02.2007. 32. Learned counsel for the appellant submitted that the delay was quite unintentional. 33. The index filed along with the Memo of Appeal shows that the certified copy of the order dated 20.01.2006 was filed along with the Memo of Appeal. The fresh certified copy of the order was filed on 26.02.2007. 32. Learned counsel for the appellant submitted that the delay was quite unintentional. 33. The index filed along with the Memo of Appeal shows that the certified copy of the order dated 20.01.2006 was filed along with the Memo of Appeal. It could not be known how a report was made that certified copy of the order was wanting with the Memo. But whatever be the fact the condonation petition also shows that on account of laches on the part of the counsel for the appellant, there was delay in filing the required certified copy of the impugned order. It is also settled that the Court should be liberal in condoning the delay. 34. Under such circumstances, the delay deserves to be condoned and on account of delay the appeal cannot be said to be not maintainable. 35. Thus, when from the discussions made above, it appears that the learned Sub-Judge was not justified in rejecting the application of the applicant in setting aside the award, the impugned order accepting the award, is set aside; 36. The appeal is allowed. There would be no order as to costs.