- (1.) The Court: The instant application under sections 30 and 33 of the Arbitration Act, 1940 has been filed by the petitioner M/s. A.K. Ghosh & Co. for setting aside the award made by the learned Arbitrator Sri Anil Kumar Sen, former Chief Justice, Calcutta High Court in the matter of arbitration between M/s. A.K. Ghosh & Co. v. State of West Bengal & Anr.
(2.) The case of the petitioner in brief is that he was awarded the work for construction of Rural Family Planning Centre at Barakar in the District of Burdwan. On receipt of the work order the petitioner made endeavour to complete the said work within the stipulated period but due to various breaches and defaults on the part of the department execution of the said work was delayed. The petitioner was able to complete the said word on 14.9.79. Various extra works at the instruction of the department had been executed by the petitioner for which the petitioner is entitled to payment. Due to delay in the matter of execution of the work for the reasons attributable to the department, the petitioner was subjected to financial loss. The department prepared a final bill after lapse of considerable period but the said final bill prepared by the department did not reflect all the dues payable to the petitioner. The petitioner desired to receive the admitted dues under the said bill on endorsing objection thereto. But the Executive Engineer and the Accounts department were reluctant to release the payment of the said admitted dues unless no claim certificate was issued. Having been in acute financial straits the petitioner had to receive the said admitted amount under the aforesaid bill surrendering to the dictates of the Executive Engineer and the accounts department. Despite repeated demands the department failed and neglected to make payment of the petitioner's legitimate dues. Thereafter on 29.12.79 the petitioner wrote a letter to the executive Engineer, Burdwan Division, Construction Board Directorate, Burdwan enclosing a list of claims and requested for payment within 15 days from the date of receipt of that letter in default of which interest @ 16% per annum was claimed. It was further stated in the said letter that if the payment was not received within the said period it would be construed that the dispute had arisen and in that case the petitioner would refer the disputes to arbitration as per clause 25 of the agreement. Since no action was taken in terms of the said letter dated 29.12.79, the petitioner by its letter dated 2.4.80 requested the Chief Engineer, Construction Board Directorate, Government of West Bengal to refer the claims and/or disputes to arbitration within 30 days from the date of receipt of the said letter. Ultimately the Chief Engineer, Construction Board Directorate, Government of West Bengal by his Memo No. 997/5/8B(2)/ARB dated 9.4.97 appointed Sri S.K. Basu, Retired Chief Engineer, P.W.(CB) Directorate as Arbitrator to adjudicate upon the disputes between the petitioner and the State of West Bengal. As the said appointment of Sri S.K. Basu was not proper and legal the petitioner made an application under sections 5, 11 and 12 of Arbitration Act, 1940 for removal of the said Sri S.K. Das as well as for appointment of an Arbitrator by this Court. The said application was registered as A.P. No. 152 of 1997. On 30th October, 1998, Ronojit Kumar Mitra (J), as His Lordship then, passed an order directing the Chief Engineer, Construction Board Directorate, State of West Bengal to appoint an Arbitrator other than the said Sri S.K. Basu in accordance with the agreement. Pursuant to the said order dated 30th October, 1998 the Chief Engineer by his Memo dated 10.11.1998 appointed Mr. Anil Kumar Sen, former Chief Justice, Calcutta High Court to arbitrate into the matters relating to the claims of the petitioner arising out of tender/contract No. 62/SE(W)CBD/78-79/49/Bur. of 1978-79.
(3.) Pursuant to the said Memo dated 10th November, 1998 the learned Arbitrator by his letter dated 11th November, 1998 called upon the parties to appear before him on 30th November, 1998 at his chamber. The petitioner through his advocate Md. Yusuf Ali appeared before the learned Arbitrator on 30th November, 1998. In the said sitting the learned Arbitrator directed the parties to file their pleadings and documents in connection with the arbitration proceedings and fixed his remuneration at 200 G.Ms as well as the remuneration of stenographer and clerk to be shared equally by the parties. The learned Arbitrator held first sitting on 12th March, 1999 and the petitioner could not participate in the said sitting since the petitioner was not in a position to share the high scale of fees of the learned Arbitrator. The learned Arbitrator held the sitting in absence of the petitioner and directed the respondent to satisfy him with accounts with regard to the disputed work undertaken by the claimant which had been fully settled as well as to file a xerox copy of the final bill with the acknowledgment receipt for payment thereon. It was further directed by the learned Arbitrator that if the claimant chose not to appear on the next date of hearing fixed, the learned Arbitrator would proceed ex parte with the arbitration proceeding against the claimant and make and publish his award accordingly. The hearing was adjourned till 12th April, 1999. On receiving the minutes of the meeting dated 12th March, 1999 the petitioners sent a letter written by the advocate Miss. Rekha Bose on 1.4.99 to the learned Arbitrator ventilating the grievance against the learned Arbitrator in proceeding with the arbitration proceeding without considering the real financial difficulty of the petitioner. It has been further alleged by the petitioner that without appreciating the practical and factual difficulty of the petitioner's inability to share the abnormal and unreasonable fees of the Arbitrator, the learned Arbitrator proceeded with the arbitration proceeding ex-parte in absence of the petitioner and misconducted the proceeding and proved his bias by inviting respondent No. 1 to lodge its counter-claims, if any, though by letter of reference he was asked to adjudicate upon the claims of the petitioner only.;