HINDUSTAN STEEL WORKS CONSTRUCTION LTD Vs. CHOTANAGPUR MINING CORPORATION

JUDGEMENT

(1.) THIS application arises out of a proceeding under Section 8 of the Arbitration Act. 1940, for appointment of an umpire as per an arbitration clause contained in Agreement No. CE/ 22/67-68 entered into by the parties on the 20th December. 1967. The proceeding which was registered as Title Arbitration No. 65 of 1970 in the Court of the First Subordinate Judge at Dhanbad, was commenced by the opposite party (referred to as the plaintiff), which is a partnership firm of contractors registered under the Partnership Act with its head office in Ranchi. The petitioner is a limited company incorporated under the Indian Companies Act as a Government Company with its registered office in Calcutta.

(2.) THE agreement of the 20th December, 1967 into which the parties had entered was for supply and spreading of hard stone ballast inside the plant area of Bokaro Steel City in the district of Dhanbad. Certain disputes arising out of the said agreement having arisen, the same weje referred in accordance with Sub-clause (2) of Clause 108 of the said agreement to the joint arbitration of (1) Sri S. K. Poddar, Advocate. Ranchi. and (2) Shri P. N. Sen. Bar-at-Law, Calcutta and the said arbitrators entered upon the reference on the 25th August, 1968. By the consent of the parties, all the proceedings in arbitration were held at Calcutta. THE said arbitrators, however, could not come to an agreement so as to be in a position to make a common award, whereupon the matter was referred to one Sri S. N. Singh. who was appointed as an Umpire on the 4th November. 1969. Sri S. N. Singh entered upon the reference on the 5th December. 1965, but subsequently on the 22nd April, 1970. he expressed his inability to act as an Umpire in the said arbitration proceeding. THE opposite party (plaintiff) thereupon gave a registered notice to the said arbitrators, with a copy to the petitioner, calling upon them to fill up the vacancy thus created in the office of the Umpire within fifteen days of the date of the notice. But one of the arbitrators. Sri S. K. Poddar, intimated to the plaintiff by his letter dated the 1st May, 1970 that the arbitrators did not have any jurisdiction to appoint any Umpire in the case. Accordingly, on the 2nd May, 1970, the plaintiff opposite party commenced the proceeding in the Court of the First Subordinate Judge at Dhanbad out of which the present revision application has arisen. THE prayer of the plaintiff was that "your honour may be graciously pleased to appoint Umpire in terms of Section 8 of the Arbitration Act and be further pleased to issue directions to the said Umpire to give his award within a time to be fixed by this Hon'ble Court and/or to pass such further order or orders as your honour may deem fit and proper in the circumstances of the case".

(3.) MR. Ranen Roy appearing in support of this application did not dispute the jurisdiction of the Dhanbad Court to entertain the petition under Section 8 of the Arbitration Act. Learned counsel has. however, assailed the impugned order principally on the ground "that the appointment of Shri Kameshwar Prasad as the Umpire was made in hot haste without affording a reasonable opportunity to the petitioner of having its say in the matter. Learned counsel relied upon Sub-section (2) of Section 8 of the Arbitration Act. which is in the following terms : "If the appointment is not made within fifteen clear days after the service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or Umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties.