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2016 DIGILAW 832 (RAJ)

Shyam Das Juneja v. T. R. Juneja

2016-06-03

MOHAMMAD RAFIQ

body2016
JUDGMENT : Mr. Mohammad Rafiq, J. This application under Section 12 read with Section 14 of the Arbitration and Conciliation Act, 1956, has been filed by Mr. Shyam Das Juneja, inter-alia, with the prayer that some other arbitrator may be appointed in place of Hon'ble Mr. Justice R.C. Gandhi (retired). This court, vide order dated 30.01.2015, with the consent of the parties, appointed Hon'ble Mr. Justice R.C. Gandhi (retired) as Arbitrator to resolve the disputes between the parties. The aforesaid order was passed on the application filed by applicant seeking appointment of Arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996. 2. Mr. Nishant Vyas, learned counsel for applicant, argued that the applicant and his counsel could not bring important fact to the notice of the court on 30.01.2015 when aforesaid order was passed and this fact was discovered when the counsel for the applicant was going to prepare rejoinder to reply submitted by opposite party before learned Arbitrator, and that Hon'ble Mr. Justice R.C. Gandhi (retired) dealt with aforesaid application filed under Section 11 of the Act of 1996, while his Lordship was sitting Judge of this court. 3. The order dated 10.04.2009 was passed by Hon'ble Mr. Justice R.C. Gandhi (retired) dismissing the application filed by the applicant in default. Although, it is true that subsequently the application was restored. It is also contended that applicant is a lower middle class person and he has no earning of his own and he is dependent on his son and that the income of his son and income from one ship is only about Rs. 35,000/- per month. Hon'ble Mr. Justice R.C. Gandhi (retired) has demanded a sum of Rs. 60,000/- per hearing, and the applicant is unable to pay such an exorbitant fee. Learned counsel submitted that he does not question competence and integrity of Hon'ble Mr. Justice R.C. Gandhi (retired) but is raising this argument only on the ground of judicial proprietary, which demands that once he has dealt with the matter on judicial side, while being a Judge of this Court, he ought not to proceed as an Arbitrator. 4. Mr. Digvijay Anand, learned counsel for non-applicants, opposed the application and submitted that no effective order was passed by the then Hon'ble Mr. Justice R.C. Gandhi while His Lordship passed order on the application under Section 11 of the Act of 1996. 4. Mr. Digvijay Anand, learned counsel for non-applicants, opposed the application and submitted that no effective order was passed by the then Hon'ble Mr. Justice R.C. Gandhi while His Lordship passed order on the application under Section 11 of the Act of 1996. It was a simple order of dismissal of the application in default, which was eventually restored. Learned counsel, citing a judgment of the Supreme Court in Renuka Anantrai Vora (Smt.) and Others v. Kirtikumar Fulchand Vora and Another – (2000) 9 SCC 414 , in which case both the parties approached retired Judge of the Supreme Court, requesting him to act as Arbitrator but he pointed out that he was a Member of the Bench which had earlier passed an order in their case. Both the parties approached the Supreme Court and reiterated that they still had no objection to him acting as Arbitrator. The Supreme Court held that said retired Judge could be appointed to act as an Arbitrator in the matter. 5. Learned counsel argued that as per provisions of Section 16 of the Act of 1996 plea with regard to jurisdiction has to be raised at the earliest. In the present case, the objection, which is now being raised by the applicant, should have been raised by him in the statement of claim. Not raising such objection by the applicant in the said claim would amount to waiver of such objection on his part. 6. I have given my anxious consideration to rival submissions and perused the material on record. 7. So far as objection of applicant with regard to fee demanded by learned Arbitrator is concerned, the payment of fee is required to be made as per Clause 34 of the Manual of Procedure for Alternative Dispute Resolution 2009, which has recently been amended by the Rajasthan High Court in conformity with Fourth Schedule appended to the Arbitration and Conciliation Act, 1996 inserted by the Arbitration Conciliation (Amendment) Act, 2015. The payment of fee obviously shall be regulated by the Fourth Schedule, supra, and therefore, this cannot be a ground for change of Arbitrator. However, objection that learned Arbitrator having passed an order on judicial side in this very matter, according to the applicant, he should not continue as Arbitrator, the applicant is supposed to first raise this objection before learned Arbitrator. However, objection that learned Arbitrator having passed an order on judicial side in this very matter, according to the applicant, he should not continue as Arbitrator, the applicant is supposed to first raise this objection before learned Arbitrator. Mere fact that applicant has not raised such objection earlier cannot be a reason to deny him the right to raise such objection even now. Although it is true that Section 16 of the Act of 1996 envisages that plea with regard to jurisdiction has to be raised at the earliest but in the present case the applicant has submitted that after it had filed the statement of claim he discovered the fact about the sole Arbitrator having passed the order on judicial side in this matter while being a Judge of this Court, much after filing objection with regard to statement of claim. In the opinion of this court, therefore, the applicant should not be precluded from raising such objection even now. It goes without saying that if any such objection is raised, it would be for learned Arbitrator to decide this issue in accordance with law before entering upon merits of the case because under Section 16 of the Act of 1996 the Arbitrator is competent to decide such objection. Application is disposed of with aforesaid liberty to applicant.