- (1.) PRAFULLA C. Pant, 1. By means of this arbitration petition preferred under Section 11(6) of Arbitration and Conciliation Act, 1996, the petitioner has sought appointment of another arbitrator in place of arbitrator Capt. Pradip Kumar (respondent No. 2) appointed by the Hon 'ble Chief Justice, Gauhati High Court vide order dated 19.02.2002 passed in Arbitration Petition (R) No. 1 of 2002.
(2.) HEARD learned counsel for the parties and perused the papers on the record. Brief facts of the case are that in terms of Agreement dated 05.05.1995 entered between the petitioner North Eastern Electric Power Corporation Ltd. (for short NEEPCO) and respondent No. 1 M/s Shrolenson Marbaniang, construction work of Dikrong Power House was to be executed in Arunachal Pradesh. After a dispute arose in respect of some claims made by the respondent No. 1(i.e. the contractor), invoking arbitration clause, he filed Arbitration Petition (R) No. 1 of 2002 before the Hon 'ble Chief Justice, Gauhati High Court. Which was disposed of vide order dated 19.02.2002, whereby, Capt. Pradip Kumar of Oil India Ltd, Duliajan (present respondent No. 2) whose name figured in the list of panel of arbitrators maintained by the Indian Council of Arbitrators, was appointed as an arbitrator on behalf of NEEPCO (present petitioner). Another arbitrator, nominated by present respondent No. 1(contractor) was one Shri Bulan Ch. Borgohain of Guwahati. It appears that they appointed one Dr. Sarad Ch. Dutta as Presiding Arbitrator. The Tribunal passed final award on 01.10.2007. Said award was challenged by the present petitioner (NEEPCO) before the Principal Civil Court/Addl. Deputy Commissioner, Shillong by filing Arbitration Case No. 3(T) 2007 and the Court set aside the award dated 01.10.2007 on 27.08.2010. Against the said order of the Principal Civil Court, Arbitration Appeal No. 1 of 2008 was filed by the present respondent No. 1(contractor), before the Gauhati High Court, and the same was disposed of vide order dated 16.06.2011 and the appellate court declined to interfere with the order passed by the Principal Civil Court. However, the contractor was allowed to appoint substituted arbitrator in place of Bulan Ch. Borgohain (as he was found to be an ex -employee of the contractor/appellant and on said ground, the award was set aside). Consequently, present respondent No. 1/contractor has nominated Shri Kaida Najiar, Retired Chief Engineer (PWD), Shillong. It is pertinent to mention here that admittedly Special Leave to Appeal filed against the order dated 16.06.2011 passed in the Arbitration Appeal No. 1 of 2011 has been dismissed by the Apex Court in limine on 12.03.2012.
(3.) THE present petitioner (NEEPCO) has moved this application for change of his Arbitrator i.e Capt. Pradip Kumar earlier appointed by Hon 'ble Chief Justice, Gauhati High Court. The ground taken in the present petition is that Capt. Pradip kumar became functus officio after he delivered the award as such appointment of another person is sought to be made as an Arbitrator on behalf of the present petitioner (NEEPCO).;