Decided on April 09,1976



- (1.)THIS appeal has been preferred against an order of S. K. Roy chowdhury, J. dated July 14, 1975, removing an arbitrator under an arbitration agreement between the parties and appointing a new arbitrator. The facts of the case may briefly be stated as follows : on June 30, 1965, an agreement was entered into between the parties for supply of two floating Cranes in respect of construction work of the Farakka barrage Project. The said agreement contains an arbitration clause, material portions of which read as follows : -
"arbitration Clause :- (a) In the event of any question, dispute or difference arising under the conditions or any special conditions of contract or in connection with this contract. . . . . . the same shall be referred to the sole arbitration of the Chief Engineer, Farakka Barrage Project or of some other person appointed by him. . . . . . . . . the award of the arbitrator shall be final and binding on the parties to the contract. (b ). . . . . . . . . . . . (c) In this clause the expression "chief Engineer, Farakka Barrage project", means the Chief Engineer, Farakka Barrage Project for the time being and includes, if there be no Chief engineer. Farakka Barrage Project, the Officer who is for the time being the administrative head of the Farakka Barrage Project organisation whether in addition to other functions or otherwise. "

(2.)THE respondent Contractor clamed a sum of Rs. 14,29,460. 46 p. as damages. The appellant disputed the liability. By a notice dated December 20, 1967, the dispute was referred to sri D. P. Roy chowdhury, Superintending Engineer, who was appointed by the Chief Engineer as the arbitrator under the said agreement. At a meeting held by the said arbitrator on april 8, 1968, the parties agreed that the arbitration proceeding should remain stayed for the time being to enable them to settle the claim. As the parties failed to settle the said claim and Shri Roy chowdhury retired from service, Shri G. K. Dutta, Superintending Engineer, Planning and designing circle, was appointed by the General manager, Farakka Barrage Project as the arbitrator in place of Shri D. P. Roy chowdhury. The date to make and publish the award was extended from time to time. The appellant did not choose to file its counter-statement of facts in spite of the fact that the date to file the counter-statement was extended finally till October 17, 1974. On september 1. 9. 1974, the Contractor called upon Shri Dutta to make his award within the said extended date. The Contractor Company came to know from a copy of the letter forwarded to it whereby Shri Dutta requested the Chief Engineer, farakka Barrage Project, to apply to the Court for an extent ion of time to make his award, by two months from october 17, 1974. In the meantime, shri Dutta was transferred from the post of Superintending Engineer, Farakka Barrage Project to the post of Member North Bengal Flood Control Commission under Govt. , of West Bengal. As the time to make the award expired on October 17, 1974 and the appellant also did not file its counter-statement of facts, the Contractor made the present application before the trial Court on December 23, 1974, for leave to revoke the authority of Shri Dutta, for removing him as arbitrator and also for appointment of a new arbitrator by court. On February 5, 1975, the appellant made a statement in its counter affidavit that Shri Motiram of Delhi had been duly appointed to be the new arbitrator, and that the arbitration proceedings should continue before Shri Moti Ram. In the affidavit-in-reply filed on February 12, 1975 on behalf of the respondent the validity of appointment of Shri Moti, Ram was challenged.
(3.)MR. S. Mukherjee, appearing on behalf of the respondent, has raised a preliminary point of law that this appeal is not maintainable having regard to the provisions of Section 39 of the arbitration Act.

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