- (1.) Since the issue involved in all the aforesaid arbitration applications are same and all are between the same parties, the applications have been heard analogously and are being decided by this common judgment having binding effect in all the applications, however, taking the Arbitration Application No. 26 of 2006 as leading one.
(2.) This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter in short called as the 'Act'). Initially, Justice K.L. Sharma, a former Judge of this High Court, was appointed as an arbitrator by an order dated 21st July, 2006 of the then Hon'ble Chief Justice. He has entered upon reference on 08th August, 2006. The Respondent had submitted to the jurisdiction of the arbitrator. The Respondent has not only participated in framing the issues but the cross-examination with regard to the witness of the Petitioner was concluded by the Respondent. In the counter affidavit there is no denial on the part of the Respondent authority in respect of the aforesaid facts. However, inspite of the same, the Respondent had challenged the order/s of the then Chief Justice dated 21st July, 2006 passed in Arbitration Application Nos. 26 of 2006, 27 of 2006 and 28 of 2006 before the Supreme Court by filing Civil Appeal Nos. 7919 of 2009, 7920 of 2009 and 7921 of 2009 General Manager N.E. Rly Gorakhpur U.R v. Lall Constn. Company and obtained an order of remand from the Supreme Court on 25th November, 2009. In such matters, the Supreme Court was of the view that the point involved in the appeals is covered by three Judges' Bench decision of the Supreme Court in the case of Northern Railway Administration Ministry of Railway New Delhi v. Patel Engineering Company Limited, 2008 10 SCC 240. Accordingly, the impugned orders in the appeals were set aside and the matters have been remitted back to the High Court for a fresh decision in accordance with law. The Supreme Court wanted disposal of the matters as expeditiously as possible.
(3.) I have come across three Judges' Bench judgment of the Supreme Court in Northern Railway Administration (supra) and gone through the relevant part of this judgment i.e. paragraph-14, where it has been held that the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of Sub-section 8 of Section 11 of the Act have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. From a perusal of Sub-section 8 of Section 11 of the Act, as aforesaid, I find that it requires consideration on two parts: (a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.;