- (1.) Petitioner has approached this Court for appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short the Act ) on account of failure of Chief Engineer to change the arbitrator in terms of Clause 25(vi) of the Agreement which reads as under: - (vi) Chief Engineer, PWD, Incharge of work shall have the authority to change the Superintending Engineer on an application by either the contractor or the Engineer-in-Charge requesting change Superintending Engineer giving reasons thereof their before the start of the arbitration proceedings or during the course of such proceedings. The arbitration proceedings would stand suspended as soon as an application for change of Arbitration Committee is filed before the Chief Engineer and a notice thereof is given by the applicant to the Arbitration Committee. The Chief Engineer after hearing both the parties may pass a speaking order rejected the application or accepting to change the Superintending Engineer simultaneously, appointing a technical officer not below the rank of Superintending Engineer as a member of Arbitration Committee under the contract.
(2.) The new Arbitration Committee so appointed may enter upon the reference a fresh or he may continue the hearings from the point these were suspended before the previous Arbitration Committee. The dispute between the parties stands referred to an Arbitral Tribunal vide the communication dated 10.12.2010 of the Chief Engineer of the respondent. The Arbitral Tribunal consists of Er. Yogesh Gupta, Joint Secretary, Chairman of the Committee, Er. Madan Bansal, Superintending Engineer as Representative of the Department and Er. B.K.Bassi as Representative of the Contractor. The appointment of Er. Bassi has been disputed by the department whereas, the appointment of Er. Madan Bansal and Er. Yogesh Gupta has been disputed by the Contractor.
(3.) It is pointed out by learned counsel for the petitioner that the Chief Engineer in terms of Sub Clause (vi) is required to substitute an arbitrator but has failed to substitute an Arbitrator. Therefore this Court under section 11(6) of the Act is the competent Court to appoint an Arbitrator. Sections 14 and 15 of the Act deal with the termination of a mandate and substitution of an Arbitrator. The said provisions read as under: - 14.Failure or impossibility to act.- (1) The mandate of an arbitrator shall terminate if--- (a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and (b) he withdraws from his office or the parties agree to the termination of his mandate. (2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate. (3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12. 15.Termination of mandate and substitution of arbitrator.- (1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate---- (a) where he withdraws from office for any reason; or (b) by or pursuant to agreement of the parties. (2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. (3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2) , any hearings previously held may be repeated at the discretion of the arbitral tribunal. (4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not b invalid solely because there has been a change in the composition of the arbitral tribunal.;