Amitava Lala, J. - (1.) This is an application under Sections 5, 11 and 12 of the Arbitration Act, 1940.
(2.) By making this application, the petitioner wanted to remove the Arbitrator already appointed in the proceedings under the agreement dated 28th June, 1989 and for appointment of an Arbitrator in place and instead of other Arbitrator along with other incidental prayers.
(3.) The following grounds are taken by the petitioner for the purpose of removal of the Arbitrator which are as follows:- "(a) The Second respondent (the Arbitrator) has been having private communication and exchange of documents with the first respondent behind the back of the petitioner; (b) There was obviously no letter under cover whereof copy of the said notes of argument was forwarded to the second respondent. This would be evident from the fact that there was no pin mark or other mark on copy of the said notes of argument which would suggest that the same was sent under covering letter. No copy of the alleged covering letter was found in the records of the second respondent. That copy of the notes of argument was forwarded even without any covering letter goes to show that the name was personally handed over casually by the first respondent to the second respondent and this fact establishes the close connection maintained by the second respondent with the first respondent after disputes arose between the parties. (c) Copy of the notes of argument forming records of the learned Arbitrator relates, inter alia, to the removal of the second respondent as Arbitrator and does not relate to the merits of the case and, as such, would have no occasion/connection whatsoever with the arbitration and could not under any circumstances form part of the arbitration. This fact goes to show that the second respondent was personally interested in the outcome of the application for his removal as Arbitrator and through the first respondent kept a close tab on the court proceedings in this connection. This goes to show the personal involvement of the second respondent with the subject matter of the reference; (d) There have been separate instances which clearly go to show the close association between the first respondent and the second respondent and the bias of the second respondent in favour of the first respondent, namely; (e) Discovery of private communication between the first respondent and the second respondent, namely,'forwarding copy of the Notes of Argument in Special Suit No.____ of 1993 by the first respondent to the second respondent; (f) The Arbitrator has grossly misconducted the proceedings and has given more than ample cause for reasonable apprehension in the mind of the petitioner that Arbitrator is biased in favour of the first respondent and there is a lack of honesty, impartiality and disinterest on the part of the Arbitrator; (g) It become apparent and obvious that the Arbitrator has not been acting fairly, impartially or honestly and no faith or trust can be reposed in the Arbitrator and/or his ability to give a fair and just decision; (h) Your petitioner's apprehension from the very beginning that the Arbitrator is biased in favour of the first respondent has been confirmed by the acts and conduct of the Arbitrator in course of the reference; (i) The Arbitrator is suffering from moral turpitude which is being reflected in the manner and mode in which he is conducting the Arbitration proceedings; (j) The facts on record amply demonstrate that the second respondent is actually biased. At least there is a strong probability that he will be biased and to such an extent as to be incapable of fairly and honestly giving a decision. The conduct of the Arbitrator before the arbitration proceedings commenced and during the progress of the arbitration proceedings indicate that the Arbitrator is likely disposed to decide the matter in a particular way in favour of the first respondent; (k) In the facts and circumstances of this case, there are sufficient grounds for reasonable apprehension in the mind of the petitioner that the second respondent was and in actually biased in favour of the first respondent and there was and is a clear and real likelihood and/or possibility of such bias and from the facts on record it was and is reasonable to believe that the second respondent has already made up his mind to make an award as per the liking of the first respondent; (1) There is a reasonable likelihood of miscarriage of justice if the arbitration proceedings are allowed to be proceeded with before the respondent No. 2; (m) The doctrine of natural justice pervades the procedural law of arbitration. Its observance is the pragmatic requirement of fair play in action. The facts on record clearly indicate that the Arbitrator failed and neglected to observe the said requirement and the arbitration proceedings have not been conducted by the Arbitrator in accordance with the principles of natural justices.";