Shamsher Bahadur - (1.) THIS is an appeal of the Azad Hind Chemicals Ltd. from the order of Mr. Om Nath Vohra, Subordinate Judge 1st Class, Jullundur, who has passed a decree for Rs. 12,791-5-0 as principal and Rs. 400 as interest against the appellant in favour of Ram Lal, in pursuance of an award which has been made a rule of the Court.
(2.) IN order to appreciate the contention of Mr. Bahri, who has argued the appeal on behalf of the Azad Hind Chemicals Ltd. with great force, it is necessary to set out briefly the facts and the course of the arbitration proceedings. Certain disputes arose between the Azad Hind Chemicals Ltd. and the respondent Ram Lal who held its managing agency. Under Clause 14 of the agreement between the parties dated 9th October 1953, any dispute or difference is to be decided by two arbitrators, one to be named by each party to the agreement Shri A. D. Kapur was nominated an. arbitrator by the respondent. Ram Lal vide letter of the 3rd December 1954 served on the appellant on 8th December 1954. On 24th of December 1954 Ram Lal informed Shri A. D. Kapur that he should proceed with the arbitration as the other side had failed to intimate the name of its nominee for arbitration, Shri A. D. Kapur intimated to the appellant by his letter of the 29th of December 1954 about his appointment as a sole arbitrator and asked the parties to attend his office On 8th of January 1955. The proceedings were adjourned at the request made by Azad Hind Chemicals for 25th of January 1955. The Azad Hind Chemicals had received notice of this adjourned hearing on 17th of January 1955. An application was sent by the appellant to the arbitrator not to proceed with the reference as his appointment as a sole arbitrator was illegal and ultra vires. Under Section 9 of the Indian Arbitration Act, "where an arbitration agreement provides that a reference shall be to two arbitrators, one to be appointed by each party, then, unless a different intention is expressed in the agreements- (a) (b) If one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for fifteen clear days after the service by the other party of a notice in writing to make the appointment, such other party having appointed his arbitrator before giving the notice, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference and his award shall be binding on both parties as it he had been appointed by consent." The appellant moved the Court under the proviso to Clause (b) of Section 9 for setting aside the appointment of Shri A. D. Kapur as sole arbitrator. This application was dismissed by the Court of Shri Ranjit Singh, Subordinate Judge, 1st Class, Jullundur, on 22nd of March, 1956. The Court had earlier directed the arbitrator not to pronounce his award. To take the thread of the arbitration proceedings, when the appellant did not appear before the arbitrator he started ex parte proceedings against Azad Hind Chemicals Ltd. On 5th of February, 1955, the evidence of Ram Lal was recorded ex parte. The arbitrator was moved on be-half of the appellant to stay proceedings but the arbitrator informed the counsel, Mr. Dina Nath, appearing on behalf of the appellant that unless an order from the Court was produced he would not discontinue the proceedings. An adjournment was panted upto 26th of February 1955 to enable Mr. Dina Nath to obtain the stay order and as it was not produced before the arbitrator, ex parte evidence was recorded by him on 26th of February 1955. After the order dismissing the application of the appellant under Section 9(b) was passed by the Court on 22nd of March 1956, the award was announced by the arbitrator on 28th of April 1996. In The note recorded on the award by the arbitrator, it was stated that "the proceedings before me were stayed by the order of the Court in application by the Azad Hind Chemicals Limited against Shree Ram Lal and the application having been dismissed and the time for making the award was extended by the Court upto 30-4-1956."
(3.) THE only point which has been canvassed, in this appeal is that the award which has been made a rule of the Court by the order under appeal is vitiated because of the judicial misconduct of the arbitrator. It has been urged trial the arbitrator was under a bounden duty to keep the appellant informed about the proceedings before him and more especially after the order passed by the Court on 22nd of March 1956. , It is well to observe that no proceedings were taken by the arbitrator after he had been asked to refrain from making an award. By that time the ex parte evidence of Ram Lal had been recorded. Mr. Bahri contends that after the order of the Court dismissing the objections of the appellant, the arbitrator should have called upon the appellant to produce any evidence if it so desired. I am unable to appreciate this contention. THE persistence of the appellant to absent itself from the arbitration proceedings had culminated in the order of the arbitrator wherewith he directed ex parte evidence of Ham Lal to be recorded. Only the award had to be pronounced after' the order of the Court and in absence of any direction to this effect no intimation need have been given to the appellant before doing so. Mr. Bahri has placed reliance on the following passage in Russel on Arbitration (Sixteenth edition) at page 159: "Whether notice requisite when authority denied "If a party says "I will not attend, because you (the arbitrator) are receiving illegal evidence, and no award which you can make will be good', the arbitrator may go on with the reference in his absence; and it seems that it is not necessary in such a case to give the recusant any notice of the subsequent meetings. But, though it may not always be necessary, it is certainly advisable that notice of every meeting should be given to the party who absents himself, so that he may have the opportunity of changing his mind, and of being present if he pleases." So far as I can see no meeting was ever held by the arbitrator after he had concluded with the ex parte evidence. The pronouncement of the award did not require a meeting as the arbitrator had to proceed on the evidence recorded by him. If the appellant was so minded, he could have approached the arbitrator to give him an opportunity to produce evidence. It is not open at this stage for Mr. Bahri to contend that the arbitrator was guilty of judicial misconduct because, he did not invite the Azad Hind Chemicals Limited after the order of 22nd March, 1956, to participate in arbitration proceedings, The appellant had deliberately chosen to absent himself and had moved the Court to set aside the appointment of Shri A. D. Kapur as the sole arbitrator. Having failed in this attempt the appellant should have approached the arbitrator who, it would be noted, gave his award more than a month after the dismissal of the application presented by the appellant for the arbitrator's removal. It is the litigant who should approach the Court and no duty is cast on the arbitrator to invite a recalcitrant party to be present when it has evinced its intention to remain absent and especially in this case when the entire ex parte evidence had already been recorded against the appellant.;