HEMANT GUPTA, J. - (1.) THE challenge in the present revision petition is to the order passed by the learned trial Court, whereby an application filed by the petitioner for removal of Shri B.K. Saini, as an Arbitrator for adjudication of the dispute between the parties, was declined.
(2.) AN agreement dated 24.4.1987 for supply of transformers was executed between the petitioner and the Electricity Board. Since dispute arose between the parties, Shri T.S. Bhatia, Chief Engineer (R&A) was appointed as a sole Arbitrator. He entered upon reference and directed the parties to file the respective claims, but on 14.8.1995, the post of Chief Engineer (R&A) was re- designated as Chief Engineer (R&D) with further direction that the Chief Engineer (R&D) would confine his activities to research and coordination only and will not handle the arbitration activities. Then Shri K.S. Dhillon, was appointed as a sole Arbitrator by the Board. Thereafter, the petitioner disputed the appointment of Shri Dhillon, having been appointed without the consent of the petitioner. Shri Dhillon left India. Therefore, appointment of Shri K.S. Dhillon, was superseded and Shri B.K. Saini, was appointed as Arbitrator. The petitioner challenged the appointment of Shri B.K. Saini, as an Arbitrator, by way of an application before the trial Court. The impugned order has been passed on such application. It is the stand of the Board that Shri K.S. Dhillon, was appointed as an Arbitrator after the post of Chief Engineer (R&D) was abolished. Subsequently, Shri B.K. Saini, was nominated as a sole Arbitrator and the case was fixed at the stage of arguments and that the Arbitrator has been nominated as per the terms and conditions of the purchase order. The learned trial Court declined the application filed by the petitioner on the ground that in terms of Clause 23 of the agreement, the appointment of the Arbitrator was to be by designation and by the Board. The Arbitrators earlier appointed could not render award for one or the other reason. Therefore, the respondents have appointed another Arbitrator in terms of the arbitration clause.
(3.) LEARNED counsel for the petitioner has vehemently argued that once an Arbitrator has been appointed by the competent authority, the power to appoint another Arbitrator after his refusal to act or if for any other reason, the vacancy has been available, vests with the Court in terms of Section 8(1)(b) of the Arbitration Act, 1940 (hereinafter referred to as 'the Act') and the Arbitrator cannot be appointed in terms of the agreement. He has relied upon M/s. Shamji Mal v. M/s. L. Sefton and Co. Ltd., Mirzapur and another, 1954 PLR 187; Jind Co-operative Sugar Mills Ltd. v. M/s. Sunder Das and Co., 1992(1) RRR 15 and the Hon'ble Supreme Court's judgment reported as State of West Bengal v. M/s. National Builders, 1994(1) RRR 299 (SC) : AIR 1994 SC 200.;