- (1.) This misc. appeal under Sec. 39(vi) of the Arbitration & Conciliation Act, 1940 (hereinafter 'the Act of 1940') has been filed against the judgment and decree dt. 11.4.1991 passed by the Addl. District Judge No. 1, Ajmer (hereinafter 'the trial Court') whereby the objection of the claimant-appellant to the award dt. 28.12.1984 passed by the Sole Arbitrator were dismissed and the application under section 17 of the Act of 1940 filed by the respondent Central Public Works Department allowed making the award in issue the rule of the Court and directing that a decree be drawn in terms thereof. FACTS: In a nutshell the facts of the case are that appellant filed a claim petition before the trial Court stating therein that he entered into a contract agreement No. EE/1 of 1975-76 with the respondent No. 1 Union of India through the Executive Engineer CPWD, Ajmer for development of "land for CRPF works" at Ajmer S.H. providing water meters in residential quarters type 11/168, Type 111/4 and Type IV/4, Nos. at Foysagar Ajmer. It was stated that according to the clause 24 of the said agreement, if any, dispute arose out of the said contract; the same was to be referred to the Sole Arbitrator of person appointed by the Chief Engineer (Central PWD) Northern Zone. It was submitted that as a dispute in respect of the claim of the contract between the parties for Rs. 28,614.34 paisa arose as a result of which the appellant invoked the arbitration clause for settlement of the disputes by his notice dt. 15.2.1979 to the Chief Engineer, Northern Zone, CPWD, New Delhi under Sec. 4 read with Sec. 8(1) of the Arbitration Act, 1940 (Act of 1940). Appointment of an Arbitrator to settle the dispute in respect of the appellant's claim was sought. One G.V.G. Krishnamurthy was appointed as the Sole Arbitrator and entered upon reference. Claims were filed. They were denied and counter claim laid. Mr. G.V.G Krishnamurthy resigned on 4.3.1983. The respondent Railways then appointed one C.H. Prabhakhar Rao on 16.6.1983 who entered upon the reference on 27.6.1983. Documents in support of the respective cases filed.
(2.) The time for pronouncing the award extended on various occasions. The Arbitrator fixed the date of hearing in the matter on 4.12.1984 at Delhi vide his letter dt. 4.8.1984 and also required the appellant-claimant's consent for enlargement of time upto 31.12.1984 for making and the publishing award. The appellant telegraphically sought adjournment on the said date i.e. 4.12.1984 as he was allegedly suffering from fever arid sent a confirmatory letter on 4.12.1984 to the same effect. The Arbitrator without considering the request of the appellant for adjournment is stated to proceed ex-parte and without further intimation made and signed the award on 28.12.1984. Thereunder the Arbitrator dismissed the claims of the appellant and allowed the respondent railways counter claims to an extent of Rs. 19961.42 (Rupees Nineteen Thousand Nine Hundred and Sixty One and Paisa Forty Two). In the circumstances the appellant submitted an application under Sec. 30 read with Sec. 33 of the Indian Arbitration Act in the Court of District Judge, Ajmer challenging the award dt. 28.12.1984. Vide order dt. 11.4.1991 the application was dismissed. Hence this appeal.
(3.) I find no force in the contention of Mr. Ranjan, Sr. Counsel that the Arbitrator ought to have necessarily adjourned the matter on request for adjournment vide telegram dt. 3.12.1984 followed by the letter to the same effect on 4.12.1984 pleading inability to appear on 4.12.1984 because of illness. In my considered opinion a mere request for adjournment on the ground of illness without any supporting document/prescription was/is of no avail. It is not the case of the appellant-claimant that any such document of illness was produced before the Arbitrator even along with the letter dt. 4.12.1984. The telegram dt. 3.12.1984 as also the letter dt. 4.12.1984 are not stated to have contained the nature of illness suffered as alleged by the claimant at the relevant time. Adjournments are matter of discretion of the Arbitration and unless the discretion is shown to have been unjustly and unfairly exercised in the facts of a case it cannot constitute a denial of natural justice and bring it within the scope of misconduct Secs. 33 and 34 of the Act of 1940. From the facts on record such does not appear to be in the present case. No misconduct can thus be attributed to the Arbitrator solely in the circumstances of his having refused the adjournment as sought by the claimant-appellant, Sr. Counsel's contention and proceeded thereafter ex parte to pronounce the award. The award being vitiated by the denial of principles of natural justice and consequent misconduct is without force and is rejected.;