- (1.) SUSHIL Harkauli, J. The respondent No. 2 Sri M. M. D. Seth was appointed arbitrator in a dispute between the petitioner Ghaziabad Development Authority (for short GDA) and the respondent No. 1 i. e. Subodh Builders (Pvt.) Ltd. The case is admittedly governed by the Arbitration and Conciliation Act, 1996.
(2.) TOWARDS the later part of the arbitral proceedings, the arbitrator Sri M. M. D. Seth was challenged by the petitioner by moving an application (Annexure 6 to the writ petition ). The facts on the basis of which the arbitrator was challenged are such, of which the petitioner claims to have become aware subsequent to the appointment of the said arbitrator. The challenge has been overruled by the Arbitrator. This writ petition has been filed basically against the said overruling. During the pendency of the writ petition, an interim order has been sought staying the proceedings before the arbitrator. The grounds of challenge are: (1) the arbitrator is prejudiced against the GDA because two earlier awards given by him has been challenged by the GDA before the Court; (2) During the hearings of the said two earlier arbitrations, an executive engineer of GDA had felt that the arbitrator was giving less importance to the submissions of the GDA as compared to the submissions of the opposite parties. (3) The departmental Engineers had seen the arbitrator sitting in the contractors vehicle, and the arbitrator used the contractor's vehicle to come to the office of GDA. (4) The arbitrator was holding the arbitral proceedings at his residence instead of the GDA office on the request of the contractor's advocate whose residence is closer to the residence of the arbitrator. A preliminary objection has been raised about the maintainability of this writ petition. For appreciating the objection it is necessary to examine the scheme of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) with regard to challenging the Arbitrator.
(3.) THE Act provides in Section 12 (3) that after appointment of arbitrator, he may be challenged either on ground (a) the existence of circumstances which give rise to the justifiable doubts as to the arbitrator's independence of impartiality or (b) not being qualified. Sub-section (4) of Section 12 provides that the ground must be such of which, the party challenging arbitrator became aware after the appointment was made. Thereafter Section 13 of the Act provides that where such challenge is made, it shall be decided according to the procedure agreed to by the parties; and in absence of such agreement according to sub-section (2) of Section 13.;