- (1.) A. M. Varma, J. Through the in stant writ petition, the petitioner has prayed for quashing of the order dated 2-5-2004 passed by the opposite party No. 2, as contained in Annexure-7 to the writ petition, whereby the application preferred by the opposite party No. 1 for supply of certain documents has been allowed and the objections raised by the petitioners to the said application has been rejected.
(2.) IT appears that as there was a dispute inter se between the petitioner as well as opposite party No. 1, as such, an application was preferred by op posite party No. 1 under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred to as an 'act') for appointment of an Arbitrator to adjudicate upon the dispute so raised by the parties. Hon'ble the Chief Justice vide its order dated 5-9-2003 allowed the ap plication preferred by the opposite party No. 1 and appointed opposite party No. 2 as sole Arbitrator During the course of the proceedings an applica tion was preferred on 1-1-2004 by the opposite party No. 1 for supply of cer tain documents. To the said application the petitioner preferred objections. The opposite party No. 2 vide its order dated 2-5-2004 allowed the application preferred by the opposite party No. 1 and rejected the objections raised by the petitioner and directed him to fur nish the papers mentioned in the ap plication within the time stipulated in the said order, it is against the said order that the petitioner had approached this Court through the instant petition. I have heard Sri Subodh Kumar, learned Counsel for the petitioner as. veil as Sri Utpal Chatterjee, learned Counsel for the Respondent No. 1.
(3.) SRI Subodh Kumar submitted that as documents said to be in posses sion of the petitioner were asked for, for preparation of the claim therefore, it is apparent that there was no claim, as such the Arbitrator, ought to have dropped the proceedings on the ground that the opposite party No. 1 had nothing to agitate before the ar bitrator. In this connection he referred to Section 32 of the Act, which postulates the termination of proceedings before the Arbitrator. Sub-section (c) of said Section contemplates that in case the Arbitral Tribunal finds that the continua tion of proceedings are unnecessary or impossible, it should terminate the proceedings pending before it. On the basis of the said provision learned Counsel emphasized that in view of the fact that there was no claim before the Arbitrator, therefore, in exercise of power under the aforesaid provision the opposite party No. 2 ought to have ter minated the proceedings. Next submis sion made by the learned Counsel is that Arbitrator is misconducting himself in the proceedings and therefore, also the same deserve to be dropped. It was further asserted that even otherwise there being no claim this Court should direct the proceedings before the op posite party No. 1 to be dropped. Sri Chatterji in opposition ar gued that the petition itself is not main tainable as such no interference is called for by this Court in exercise of powers under Article 226 of the Con stitution of India. In this connection he referred to a Constitution Bench decision rendered by the Apex Court in case of SBP and Co. v. Patel Engineering Ltd. and Anr. , reported in 2006 (1) JCLR 639 (SC) : (2005)8 Supreme Court Cases 618. He further submitted that in view of the fact that there being a dis pute inter se between the parties and the Arbitrator having been appointed under the orders passed by the Hon. Chief Justice in exercise of powers under Section 11 the proceedings can not be terminated by this Court. As per his submission on the question of mis conduct, the petitioner has a remedy by approaching appropriate forum for removal of the Arbitrator.;