- (1.) THIS is an application by the petitioners for revocation of the mandate of the Arbitrator appointed under Section 11 of the Arbitration and Conciliation Act, 1996 who is respondent No. 2 to this application. It is not the case of the petitioners that the Arbitrator has withdrawn himself and consequently there is a vacancy. The challenge is made on the ground that the petitioners have serious dispute about impartiality of the Arbitrator.
(2.) THE respondents have filed their reply wherein they have raised the plea that considering the provisions of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), it is open to the petitioners to seek direction for removal or recall of the Arbitrator. It is submitted that the Chief Justice exercising his power under Section 11 cannot exercise jurisdiction to recall an Arbitrator on the ground as has been raised on behalf of the petitioners. Section 11 can only be inyoked when there is a vacancy. Having heard the parties, in my opinion, the contention raised on behalf of the respondents has merit. Section 12 of the Act provides grounds for challenge to the appointment of the Arbitrator: Section 12 (3) of the Act reads as under: "An Arbitrator may be challenged only if- (a) circumstances exist that give rise to justifiable' doubts as to his independence or impartiality, or (b) 'he does not possess the qualification agreed to by the parties." It is thus clear that it is open to a party to challenge the continuance of the arbitrator if circumstances exist that give rise to justifiable doubts as to his independence or impartiality. Section 12 (4) of the Act permits an applicant to challenge the continuance of an Arbitrator, even' if he was earlier a party to the appointment and the sub-section reads as under:- "A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made." Section 13 (2) of the Act provides the procedure for the challenge to the continuance of an Arbitrator, which includes sending a written statement of the reasons for the challenge to the arbitral tribunal. Under Section 13 (3) of the Act, power has been conferred on the arbitral tribunal to decide on the challenge. The next relevant provision is Section 13 (4), which reads as under:- "If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award." Section 13 (5) provides that if a party is aggrieved by such an award then such party can challenge the award by making an application under Section 34, wherein the challenge which was rejected, can be considered. Where the mandate of an Arbitrator terminates by virtue of Section 15 (6), a substituted arbitrator shall be appointed according to the rules that were applicable to the appointment of the Arbitrator being replaced. Once the parties fail to appoint an Arbitrator in terms of the rules, then the Chief Justice or his delegate, under Section 11 (6) on a request by a party can appoint an Arbitrator. The scheme, therefore, for removal of an Arbitrator and filling the resultant vacancy is clear.
(3.) CONSIDERING these provisions in the Act, which provide for a challenge to the continuance of the Arbitrator, the present application is not maintainable and consequently, the application stands rejected. On behalf of the petitioners, if is. pointed out that an application has already been moved before, the arbitrator. It is open to the petitioners to press that application before the arbitrator. Application rejected.;