- (1.) HEARD Mr. P.K. Prasad, learned Advocate General appearing for the applicant -State and, Mr. Binod Poddar, learned Sr. Counsel appearing for the respondent (petitioner in A.A. No.41 of 2007).
(2.) THE instant application has been filed by the applicant purported to be under Section 151 of the Code of Civil Procedure, making a prayer for change of the Arbitrator appointed by this Court by order dated 26.7.2008 passed in Arbitration Application No.41 of 2007. By the said order, with the consent of the parties, a retired Judge of this Court, Justice S. Roy, was appointed as an arbitrator to adjudicate upon the disputes arose between the parties. The contention of the applicant -State is that in course of argument of the arbitration application, names of two retied Hon'ble Judges, namely Justice S. Roy and Justice S.K. Chattopadhyay, were suggested. Unfortunately, the arguing counsel of the respondent -State did not have time to consult the respondent -State and the concerned department and without consulting the concerned department, counsel for the State consented for the appointment of Justice S. Roy, retired Judge of this Court as an arbitrator. According to the applicant, appointment of Justice S. Roy is not with the consent of the parties. The applicant -State further contended in the supplementary affidavit that the dispute being highly technical, only a technical person should be appointed. According to the applicant, such highly technical matter cannot be properly appreciated by a person other than a technical person. Several other allegations and insinuations have been made against the arbitrator. The petitioner opposed the application by filing counter affidavit stating inter alia that such application is not maintainable. It is contended that once the parties had agreed to the appointment of an arbitrator, they cannot challenge the same on the basis of some baseless apprehension. The name of the arbitrator was duly agreed upon by the applicant -State of Jharkhand and therefore, they cannot say that they did not accorded consent for the said name. Further, there is no condition in that contract for appointment of technical expert as an arbitrator.
(3.) FROM perusal of the application filed by the State purported to be under Section 151 of the Code of Civil Procedure, it is not a case where simple prayer has been made for change of arbitrator on the ground that some technical expert be appointed in his place. On the contrary, some aspersions and stigmatic statements have been made in the application. In para.6 of the application, it is alleged by the State that in another case relating to arbitration between M/s. Webel Technology V/s. State of Jharkhand through I.T. Department, Justice S. Roy (Retired) was appointed as a sole arbitrator in which after conclusion of the hearing, he asked both the parties to deposit Rs.64000/ - each for writing judgment and for preparation of award, to which the State of Jharkhand did not agree. However, other party paid the entire amount of Rs.1,28,000/ -including the share of the State Government. It is further alleged that in the said case, the sole arbitrator did not consider the counter claim and defence of the department and gave an award which is under challenge in Miscellaneous Case pending before the Subordinate Judge, Ranchi. In the supplementary affidavit, further allegations have been made that pending hearing of this application, the sole arbitrator so appointed, namely Justice S. Roy, commenced the arbitration proceeding and held two sittings, despite the fact that pendnecy of this application was brought to the notice of the sole arbitrator who held that since the matter has not been stayed, he would proceed with the arbitrator proceeding.;