Gitesh Rajan Bhattacharjee, J. - (1.) The Court: This is an application under Sections 5, 11, 12, 33 and 41 of the Arbitration Act, 1940 for revocation of the authority of the Arbitrators (the respondent Nos. 2 and 3), for their removal and for referring the dispute between the parties to the Umpire already nominated by the Arbitrators, etc. The petitioner Burn Standard Co. Ltd. (BSCL, for short) is a Government of India Undertaking engaged in the business of public utility service. The respondent No. 1 McDermott International Inc. (MII, for short) is a company established under the laws of the Republic of Panama. In 1984 the petitioner BSCL entered into contracts with the Oil and Natural Gas Commission of India (ONGC, for short) regarding various off-shore marine construction works which include fabrication of Jackets Decks etc. and transportation and installation of the same and other associated marine construction works at Bombay High. Thereafter the petitioner BSCL and the respondent No. 1 MII entered into a contract in January 1986 under which the MII agreed to construct, transport and install a certain number of off-shore platforms in the oil fields of Bombay High. The said contract contained an arbitration clause regarding disputes and differences between the parties. The work undertaken by MII was allegedly completed in 1989 and thereafter disputes and differences arose between the parties in connection with the contract and the matter was referred to Arbitrators for arbitration. The respondent No. 2 is one of the present Arbitrators who was nominated as an Arbitrator in the matter by the petitioner. The respondent No.3 is an arbitrator in the matter respondent No. 1 MII. During the continuance of the arbitration proceedings the petitioner has filed the present application under the aforesaid Sections of the Arbitration Act for revocation of the authority of the arbitrators and for their removal substantially on the ground of bias and misconduct on the part of the arbitrators.
(2.) It is the contention of the petitioner that the Arbitrator, the respondent No.2, while action as an Arbitrator in the matter, was arrested by FERA authorities for violation of FERA and detained in custody and a criminal investigation was started against him and this incident also received wide publicity. It is the submission on behalf of the petitioner that since the criminal investigation against the said arbitrator was initiated and conducted by authorities acting under the Central Government, namely, the Govt. of India the petitioner has a reasonable apprehension that the said arbitrator cherishes a bias against the petitioner which is a Central Government Undertaking. The arbitrators were holding their sittings in connection with the arbitration proceedings for five days at a stretch in one session. On the 16th April, 1997 the respondent MII moved an application before the arbitrators for increasing the number of days of sittings to at least 10 to 12 days. It appears that the sittings which were earlier fixed on 16th December, 1996 to 20th December, 1996 as well as from 18th March to 22nd March, 1997 were cancelled. As the December and March sittings could not be held the arbitrators on the 20th April, 1997, the last day of April sittings directed, for making up the loss of 10 hearing days, as occurred earlier, that the five subsequent sessions would be of seven days each. The petitioner however felt that continuous hearing for seven days in a session would make it difficult for the learned Advocate for the petitioner to manage since the hearing includes cross-examination of the witness involving complicated technical matters and questions, and required continuous instruction by competent person on behalf of the petitioner, etc. The period of arbitration had also expired and in view of the increased number of sittings as proposed by the arbitrators the petitioner did not agree to extension of the period of arbitration. Ultimately, both the petitioner BSCL and the respondent MII approached the Court. The petitioner approached the Court for revocation of the authority of the arbitrators and for their removal while the respondent No. 1 approached the Court for extension of the period of arbitration, that is, for extension of time for making and publishing the award. Both these matters were disposed of by Shyamal Kr. Sen, J. by order dated 29.4.97, annexure-B at page 51 of the present petition. By that order the learned Judge extended the time for making and publishing the award till 31st July, 1998. The learned Judge also recorded that it was stated by the parties that at present five sittings were being held in a month and directed the arbitrators to proceed in the same manner. The learned Judge however directed the arbitrators to consider the application filed by MII for increasing the number of sittings per month and take a decision after hearing the views of BSCL. The learned Judge further directed that while taking such decision the arbitrators would take into account the convenience and inconvenience of the parties and would take appropriate decision in accordance with law and would also look to the interest of both the parties. Both the application for the revocation of the authority of the arbitrators and the application for extension of time were thus disposed of by the learned Judge by the said order date- 29.4.97. It will be evident from the reading of the said order of the learned Judge that the learned Judge did not at all enter into merit of the application filed by the petitioner for revocation of the authority of the arbitrators and simply disposed of the application by a composite order by which the time for making and publishing the award was extended and the arbitrators were directed to continue the hearing for five days in a month as before (instead of seven days as proposed by the arbitrators) and also the consider the application of the MII for increasing the number of days of each sitting to 10 to 12 days after hearing the views of BSCL and also taking into account the convenience and inconvenience of the-parties and looking into the interest of both the parties. The petitioner however participated thereafter in the proceedings before the arbitrators without prejudice to their rights and contentions. Thereafter the arbitrators passed an order on 20th June, 1997, annexure-D to the present petition whereby they directed that the sittings from the month of July 1997 onward would be for seven days every month. The petitioner is feeling aggrieved by the said order. One of the contentions of the BSCL before the arbitrators was that the Instructing Officer of BSCL was assigned to the off-shore division and if he were required to attend the arbitration proceedings for a longer period in each session the functioning of the said division would be disturbed which would create difficulties. The arbitrators felt that the said argument did not hold good inasmuch as they 'have been' informed that virtually there was no operation in the off-shore division and if necessary, another officer conversant with the facts could be deputed by BSCL and not necessarilly the partticular officer stated to have been assigned to the off-share division. The contention of the BSCL is that the arbitrators have purportingly imported knowledge from their personal sources that there is no operation in the off-shore division which they cannot do and the same is also not factually correct and such untenable importation on the part of the arbitrators constitutes misconduct. The learned Advocate for the BSCL has also referred to other different aspects of the said order of the arbitrators to show that the arbitrators are biased against the petitioner.
(3.) The petitioner has filed the present petition for revocation of the authority of the arbitrators and their removal not only on the ground of the said order of the arbitrators dated 20.06.97. It is also the contention of the petitioner inter alia that while the witness of the respondent No.1 was being cross-examined by the learned Advocate for the BSCL the arbitrators disallowed certain question put to the witness which according to the learned Advocate for the petitioner was a vital and very relevant question but which was unduly disallowed by the arbitrators thereby displaying their bias against the petitioner. The questions which were put to the witness in that connection and the answers thereto have been reproduced in paragraph 7A of the present petition. It is also the contention of the petitioner that the respondent MII failed to identify drawings and specifications in support of their purported claim regarding completion of work which was challenged by the petitioner as wrong, baseless and mala fide claim in view of which the petitioner prayed before the arbitrators for a direction upon the MII for production of the original drawings and specifications of the ONGC/EIL being in possession of MIT, as according to MII such purported claim was made on the basis of the same. The grievance of the petitioner is that the arbitrators instead of directing the MIT to disclose and identify such drawings and specifications as prayed for by the petitioner rather directed by their order dated the 23rd May, 1997, annexure at page 57 of the present petition that the BSCL should identify drawings, specifications and ONGC/EIL instructions which have not been disclosed by either of the parties pertaining to completion certificate for 10" riser at SC-1 (from EB) and if such documents, drawings and ONGC/EIL instructions are identified by BSCL and which might be in possession of MII the MII would disclose the documents which were in their possession. It is the contention of the learned Advocate for the BSCL that when MII was relying on a completion certificate and claiming completion of work in accordance with the original drawings and specifications of the ONGC/EIL it is for the MII to disclose and identify such drawings and specifications in support of the completion certificate and their claim based on that, and it is highly misconceived that the petitioner could identify such drawings and specifications supporting the claim of MII based on the purported completion certificate. It is the contention of the learned Advocate for the BSCL that by passing the aforesaid order the arbitrators have misconducted themselves and the proceedings and have displayed their bias against the petitioner.;