Calcutta High Court
Chatturbhuj Agarwala vs Food Corporation Of India & Ors on 5 February, 2020
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
ORIGINAL JURISDICTION
ORIGINAL SIDE
AP 1649 of 1985
CHATTURBHUJ AGARWALA
VS.
FOOD CORPORATION OF INDIA & ORS.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
For the petitioner : Mr. Meghnath Dutta, Advocate,
Mr. G. S. Gupta, Advocate,
For the respondents : Mr. Prabir Chowdhury, Advocate,
Judgement on: 05.02.2020
Ashis Kumar Chakraborty, J.
The petitioner in this application is the claimant in an arbitral proceeding against the respondent Food Corporation of India. The disputes between the parties arose out of a contract dated containing the following arbitration agreement.
"All disputes differences and questions which may at any time between the parties hereto, their representative or assigns touching or arising out of or in respect of these presents or the subject matter thereof, except to any matter the decision of which is expressly provided for hereinbefore shall be referred to sole arbitration of any person appointed by the Zonal Manager, Food Corporation of India. It will be no objection to any such appointment that the person appointed is an Officer of the Food Corporation of India that he has to deal with the matters to which the contract relates and that in course of his duties as such officer of the Food Corporation of India, he has expressed views on all or any of the matters in disputes or differences. The award of such Arbitrator shall be final and binding on the parties to this contract, another person appointed Arbitrator shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.........".
It is also a term of the contract that no person other than a person appointed by the Zonal Manager Food Corporation of India as aforesaid should act as Arbitrator and if for any reason that is not possible the matter is not to be referred to Arbitration at all. It is further provided that the Arbitrator may from time to time with the consent of the parties, extend the time, for making and publishing the award. Subject as aforesaid the provisions of the Arbitration Act 1940 or any statutory modification or re- enactment thereof and of the rules made thereunder for the time being in force shall apply to the Arbitration proceeding under this clause. The cost and venue of Arbitration shall be at the discretion of the Arbitrator.
The disputes between the parties arose at a point of time when the Arbitration Act, 1940 (hereinafter referred to as the "Act of 1940") was in force. In terms of an order dated July 21, 1981 passed by a learned Single Judge of this Court in an application under Section 20 of the Act of 1940, the Zonal Manager of the respondent appointed Shri N.C. Ganguli as the Sole Arbitrator to adjudicate the disputes between the parties. The said Arbitrator entered upon reference and the parties had filed their respective pleadings in the arbitration. The present respondent filed an application before this Court being matter No.699 of 1984 praying for removal of the said Arbitrator. During pendency of the said arbitration, the Arbitrator expressed his unwillingness to act as an Arbitrator any more. The respondent, however, did not agree to the proposal of the petitioner to the appointment of an independent Arbitrator in the matter and did not press for said application, Matter No.699 of 1984 any further. Accordingly, the said application was dismissed. Thereafter, on or about October 11, 1985 the petitioner filed the present application praying for, inter alia, appoint of the fit and proper person to act as an Arbitrator to adjudicate upon the disputes between the parties. The application has been pending for the period of more than 20 years without any fault of the respondent.
In view of the arbitration agreement between the parties as mentioned above, the Zonal Manager of the respondent alone can nominate the Arbitrator. The Act of 1940 did not contain any provision confer any power of the Court to appoint an independent Arbitrator in the event of any failure of the competent authority to appoint an Arbitrator. During the pendency of this application in the month of September, 2018 the General Manager of the respondent nominated a panel of three officers of the respondent for selecting one of them to be appointed as the Sole Arbitrator namely Shri T.R. Bandhopadhay, Shri K.N. Mullick and Shri S.K. Satpathy. The copies of the communications dated September 12, 2018 and September 13, 2018 as produced by the learned advocate for the respondent are kept on record.
Considering the facts of the case Shri T.R. Bandhopadhay Ex-Executive Director (Law) of the respondent is appointed as the Sole Arbitrator to adjudicate the disputes between the parties. The Arbitrator shall conduct the arbitral proceeding on the basis of the pleadings already filed by the parties before the erstwhile Arbitrator Shri N.C. Ganguli.
It is submitted by the parties that the records of the arbitral proceeding were deposited with the Registrar, Original Side of this Court.
The Registrar, Original Side is directed to make over the records of the arbitral proceeding to the petitioner upon notice to the respondents within three weeks from the date of communication of this conduct.
The Arbitrator is requested to conclude the arbitral proceeding and publishing the award within eight months from the date of receipt of the records of the arbitral proceeding. The parties are directed to co-operate with the Arbitrator to complete the arbitral proceeding within the time mentioned above. The Arbitrator shall be entitled to engage the stenographer and the secretarial staff for conducting the arbitral proceeding. The parties shall bear the fees of the Arbitrator and the remuneration of the secretarial staff in equal share.
With the above directions, the application AP 1649 of 1985 stands disposed of.
(ASHIS KUMAR CHAKRABORTY, J.)