Delivered by Hon'ble Suneet Kumar, J.) in Arbitration Application No

3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors. 1301 ORIGINAL JURISDICTION my opinion, the second application is not CIVIL SIDE maintainable and is consequently DATED: ALLAHABAD 17.11.2014 dismissed. Interim order is vacated. BEFORE Case Law discussed: THE HON'BLE SUNEET KUMAR, J. (2009) 4 SCC 523; (2005) 8 SCC 618; 2012 (6) ADJ 214; (2009) 8 SCC 520; 2013 (5) Civil Misc. Transfer Application No. 343670 of 2014 (Delivered by Hon'ble Suneet Kumar, J.) In Arbitration Application No. 35 of 2009 (In Re: Civil Misc. Transfer Application Satya Prakash Singh Applicant No. 343670 of 2014) Versus Dinesh Prakash Singh & Ors. Opp. Parties 1. The applicant had earlier filed an application no. 35 of 2009 under Section Counsel for the Applicant: 11(6) for appointment of an Arbitral Sri Ajay Kumar Singh, Sri Ashish Kumar Tribunal for settlement of dispute Singh, Sri Amit Kumar Singh between the applicant and the opposite parties, with regard to a partnership deed. Counsel for the Opp. Parties: Sri Gautam Baghel, Sri Pawan Shukla, Sri Hon'ble Chief Justice in exercise of his Vivek Kumar Singh, Sri M.D. Singh powers under Section 11(6) appointed Shekhar, Sri Udai Chandani Justice D.P.S. Chauhan, a retired Judge of this Court as sole Arbitrator to decide the Arbitration and Conciliation Act 1996- claims arising between the parties. Section-11(6)-Application for appointment of Arbitral Tribunal-once by exercising 2. The parties put in appearance power the Chief Justice appointed the before the Arbitral Tribunal and during the Arbitral Tribunal and became final under pendency of the arbitration proceedings, the section 25 of the Act-except the contingencies given in section 14-Chief Arbitral Tribunal by order dated 5.10.2014, Justice or the Judge nominated ceased in Arbitration Case No. 35-09 of 2012 with any jurisdiction-application wholly (Staya Prakash vs. Dinesh Prakash Singh misconceived-not maintainable. and others) District Mirzapur, closed the case, under Section 25 of the Arbitration Held: Para-39 and Conciliation Act, 19961 and posted the Having considered the law and provisions of the Act, in the facts of the present case case for award on 9.11.2014 at 2:00 PM. where the subject matter of the dispute was referred to arbitration and the 3. The applicant has again approached arbitration proceedings have been closed. the Court on 17.10.2011 by filing the Similar application for referring the very present Civil Misc. Transfer Application, same claim under Section 11, in my under Paragraph 8 of the Scheme of opinion, once the power was exercised under Section 11 and an arbitrator was Appointment of Arbitrators by Hon'ble the appointed, the proceedings have been Chief Justice of Allahabad High Court, closed under Section 25, there is no further 19962, seeking the following prayer:- power, considering the nature of power under Section 11 read with the Scheme, to "It is therefore, most respectfully once again refer the same disputes to prayed that this Hon'ble Court may arbitration, under Section 11. Therefore, in 1302 INDIAN LAW REPORTS ALLAHABAD SERIES graciously be pleased to withdraw the independent or impartial, further, there authority given to the learned Arbitrator has been undue delay in concluding the in Arbitration Case No. 35/2009 of 2012 arbitration proceedings, more than three (Satya Prakash Singh vs. Dinesh Singh & years has lapsed. The learned Senior others) and/or designate any other Advocate to substantiate his argument Arbitrator for the settlement of Claim relied upon the following judgments:- Petition between between the claimant Union of India vs. Singh Builders3, SBP and opposite party no. 1, and/or pass any & Co. vs. Patel Engineering Ltd. and other and further order which may meet another4, Rungta Projects Ltd. vs. at the end of justice, otherwise the Government of Uttar Pradesh and applicant/opposite party no. 1 shall suffer anothers5, Indian Oil Corporation Ltd. an irreparable loss and injury." and others vs. Raja Transport (P) Ltd. 6 4. I have heard Sri M.D. Singh 7. Sri Ajai Kumar Singh contends Shekhar, learned Senior Advocate that once an order has been passed under assisted by Sri Udai Chandani, learned Section 11(6) for appointment of an counsel appearing for the applicant and Arbitrator by the Chief Justice or his Sri Ajai Kumar Singh, learned counsel for designate, the Chief Justice or his the contesting opposite parties. designate becomes functus officio. The Arbitrator for want of independence or 5. A preliminary objection has been impartiality under Section 12(3) can be raised by Sri Ajai Kumar Singh that the removed by following the procedure application is not maintainable, the prescribed under section 13 of the Act, applicant has challenged the appointment which in the present case was not of the arbitrator on the grounds mentioned followed, admittedly, no written statement under section 12 sub-section (3) was filed before the Arbitrator. To questioning the independence or terminate the mandate of the Arbitrator, impartiality of the arbitrator and under for undue delay, under section 14, the section 14 for terminating the mandate of remedy is to approach the original Civil the arbitrator, for undue delay. The Chief Court having jurisdiction and not the Justice or his designate shall have no Chief Justice or his designate under jurisdiction under Section 11(6) or the Section 11 of the Act. The present Scheme framed by Hon'ble the Chief application has been filed with mala fide Justice under sub-section (10) of Section intention, to restrain the Arbitrator from 11 to go into the question of Section 12 or rendering the award on 9.11.2014. Sri Section 14 of Act, to remove the Singh in support of his submissions has arbitrator. relied upon following judgments:- Suresh Chandra Agarwal vs. Mahesh Chandra 6. The learned Senior Advocate Agarwal7, M/s S.K. & Associates vs. would submit that the application is Indian Farmer & Fertilizers8, Rakesh Jain maintainable and the grounds stated in vs. M/s Willowon Builders (India) Pvt. Section 12(3) and 14(1) are evident from Ltd.9, Ghaziabad Development Authority the record of the arbitration case, the vs. Subodh Builders Pvt. Ltd.10, applicant has lost faith in the Arbitral Ahluwalia Contractors (India) Ltd. vs. Tribunal as the arbitrator is not Housing and Urban Development 3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors. 1303 Corporation & others11, Chintakayala to the parties in writing any circumstances Siva Rama Krishna vs. Nadimpalli referred to in Sub-section(1) unless they Venkata Rama Raju AIR12, M/s SBP & have already been informed of them by Co vs. M/s Patel Engineering Ltd. and him. others13. (3) An arbitrator may be challenged only if- 8. Rival submissions fall for consideration. (a) circumstances exit that give rise to justifiable doubts as to his 9. The question for determination is independence or impartiality, or as to whether this application filed under (b) he does not possess the the Scheme of 1996, read with Section 11 qualifications agreed to by the parties. of the Act is maintainable or whether, the Chief Justice or his designate has (4) A party may challenge an jurisdiction to terminate the mandate of arbitrator appointed by him, or in whose the Arbitrator, already appointed under appointment he has participated, only for Section 11, and to appoint substitute reasons of which he becomes aware after Arbitrator. the appointment has been made" 13. Challenge procedure. 10. Section 12 of the Act provides (1) Subject to Sub-section (4), the the grounds for challenge, whereas, parties are free to agree on a procedure for Section 13 prescribes the procedure to be challenging an arbitrator. followed for such a challenge. Section 14 (2)Failing any agreement referred to of the Act permits the termination of the in Sub-section (1), a party who intends to mandate of an arbitrator, for the reasons challenge an arbitrator shall,within fifteen stated therein and Section 15 of the Act days after becoming aware of the provides for appointment of substitute constitution of the arbitral Tribunal of arbitrator, in case, the mandate of the after becoming aware of any arbitrator, already appointed, is circumstances referred to in Sub- terminated. Since these are the relevant section(3) of Section 12, send a written provisions of the Act and have a bearing statement of the reasons for the challenge on the facts and circumstances of the to the arbitral Tribunal. present case, which are as follows:- (3) Unless the arbitrator challenged under Sub-section(2) withdraws from his "12. Grounds for challenge. office or the other party agrees to the challenge, the arbitral Tribunal shall (1)When a person is approached in decide on the challenge. connection with his appointment as an (4) If a challenge under any arbitrator, he shall disclose in writing any procedure agreed upon by the parties or circumstances likely to give rise to under the procedure under Sub-section (2) justifiable doubts as to his independence is not successful, the arbitral Tribunal or impartiality. shall continue the arbitral proceedings and (2)An arbitrator from the time of his make an arbitral award. appointment and throughout the arbitral (5) Where an arbitral award is made proceedings, shall, without delay, disclose under Sub-section (4), the party 1304 INDIAN LAW REPORTS ALLAHABAD SERIES challenging the arbitrator may make an (b) by or pursuant to agreement of application for setting aside such an the parties. arbitral award in accordance with section 34. (2) where the mandate of an (6) Where an arbitral award is set arbitrator terminates, a substitute aside on an application made under arbitrator shall be appointed according to Subsection (5), the Court may decide as to the rules that were applicable to the whether the arbitrator who is challenged appointment of the arbitrator being is entitles to any fees.

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