MOHAMMAD RAFIQ,J. - (1.) This application under Section 11(5) of the Arbitration and Conciliation Act, 1996(for short 'the Act of 1996') has been filed by the applicant through its Proprietor Mr. Ajay Dhawan with the prayer that a retired Judge of this Court may be appointed as independent sole arbitrator in the matter for adjudication of disputes between the parties or alternatively appoint a retired Judge of this Court as a presiding arbitrator with liberty to the parties to have one each 'expert' arbitrator of their choice on the panel of the arbitrators. Factual matrix of the case as averred in the application is that the applicant is a proprietorship firm registered with Indian Oil Corporation(for short 'the Corporation') as a contractor having SAP No. 10104091. The applicant is also doing business with other petroleum companies such as Bharat Petroleum Corporation Limited and Hindustan Petroleum Corporation Limited etc. Respondent No. 1, General Manager of the Corporation after obtaining concurrence in writing from applicant appointed Shri Mukesh Gupta, Chief Manager(RS) of the Corporation at Jaipur as the sole arbitrator vide letter dated 10.10.2012 to adjudicate the dispute between the applicant-firm and the respondent-Corporation.
(2.) Mr. Mahendra Gaur, learned counsel for the applicant submitted that after transfer of Mr. Mukesh Gupta, Respondent No. 1 vide its letter dated 16.05.2013 suggested three names, all of whom were working under his direct supervision and control. Respondent No. 2 is a Government Company as defined under Section 617 of the Companies Act, 1956. The dispute is about fabrication of canopy at Dholpur which lies within the administrative control of Respondent No. 1. This dispute arose between the applicant and the respondent-Corporation on 26.06.2006. The respondents for as long as six years kept on assuring the applicant-firm that they will look into the grievances of the applicant. When no fruitful result came out, the applicant on 01.09.2012 addressed a letter to the Chairman of the respondent-Corporation to refer the dispute to arbitrator as per the arbitration clause of agreement. The respondents accepting request of the applicant, vide letter dated 10.10.2012 appointed Mr. Mukesh Gupta, Chief Manager(RS) of the respondent-Corporation as the sole arbitrator. Mr. Mukesh Gupta, sole arbitrator issued notice to the applicant to submit its claim within 15 days of receipt of notice. The applicant submitted its claim on 19.11.2012. By December, 2012, all the pleadings of the parties such as filing of claim, reply and rejoinder was completed. However, for the reasons best known to the arbitrator, he did not fix any date for hearing. Respondent No. 1 in his capacity as in-charge of Rajasthan State Office is having a direct interest in the dispute between the parties and also having direct administrative and supervisory control over Mr. Mukesh Gupta, the sole arbitrator appointed by him about his promotion and transfer.
(3.) Mr. Mahendra Gaur, learned counsel for the appellant submitted that the respondents suddenly transferred Mr. Mukesh Gupta from Jaipur to Noida, without the consent and knowledge of the applicant. Respondent-Corporation through its Law Officer, Mr. S.S. Sharma on 10.05.2013 made a request to Respondent No. 1 that some other officer may be appointed as sole arbitrator in place of Mr. Mukesh Gupta. Though, Respondent No. 1 and Law Officer sit in the same building, but surprisingly the said communication was sent by speed post. The applicant did not accept proposal suggested by Respondent No. 1 and conveyed his decision to him by e-mail. However, Respondent No. 1 seized upon the opportunity and immediately appointed Mr. Vivek Garg as sole arbitrator. Learned counsel for the applicant argued that in view of the amended provisions of the Act namely Section 12(5), especially entries 1 and 5 of Schedule Fifth and Seventh, Mr. Vivek Garg, being under the employment of the respondents, more particularly being subordinate to Respondent No. 1, could not act as an independent arbitrator. It is argued that two months have elapsed since appointment of second arbitrator and nine months since filing of claim but so far not a single hearing has taken place. This submission is being made without prejudice to right and contest of the applicant that without giving notice to the applicant and without his consent or knowledge, Respondent No. 1 could not have changed Mr. Mukesh Gupta from the post of sole arbitrator and appointed Mr. Vivek Garg, Respondent No. 3 as sole arbitrator.;