Calcutta High Court
Sambhu Nath Ghosh & Co vs State Of West Bengal on 6 May, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
AP No. 2196 of 1994
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SAMBHU NATH GHOSH & CO.
Versus
STATE OF WEST BENGAL
Appearance
Ms. S. Mukherjee, Advocate
Ms. Kumkum Das, Advocate
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 6th May, 2010.
The Court : The respondent is not represented despite service
and despite recent intimation.
This is a petition under Sections 5, 11 and 12 of the Arbitration Act, 1940 where the petitioner seeks termination of the mandate of the sole arbitrator. The grievance of the petitioner is that at the 22nd meeting in the reference, the arbitrator had incorrectly recorded that the petitioner had consented to the date of publication of the award to be extended till October 28, 1994.
At the following sitting in the reference on July 25, 1994, the petitioner apparently protested the erroneous recording of the consent to the enlargement of the time to make and publish the award till October 28, 1994. The minutes of the 22nd and 23rd meetings reveal that parties had 2 agreed that the next dates of hearing in the reference would be July 25, 1994 and July 26, 1994. The minutes of the 23rd meeting recorded that while drawing up the minutes for the 22nd meeting, it was realized that the time for making and publishing the award was due to expire on June 28, 1994. The minutes proceeded to say that by the time that it dawned on the arbitrator that the time had to be enlarged even for the adjourned meetings to be held on July 25 and July, 26, 1994, the petitioner's representatives had left the premises and could not be immediately contacted. The minutes of the 23rd meeting recorded that the arbitrator presumed that since the parties had agreed that the next dates of hearing in the reference would be July 25 and July 26, they would have no objection to the time for making and publishing the award to be extended. What is not evident from the minutes of the 23rd meeting is as to how the petitioner's implied consent for the time to make and publish the award could have stood extended beyond July 26, 1994 and till October 28, 1994.
On August 24, 1994, the petitioner protested the recording in the minutes by the arbitrator. The arbitrator responded to the petitioner's letter by forwarding the same to the respondent and requiring the respondent to issue a suitable reply.
Since it is evident that the petitioner had, indeed, not consented to the enlargement of the time to make and publish the award 3 as that appears to be the admitted position from the minutes of the 23rd meeting, it is evident that the minutes relating to the 22nd meeting did not accurately reflect what transpired before the arbitrator on June 22, 1994. In such circumstances, a case has been made out for revoking the authority of the arbitrator in terms of the applicable provisions of the 1940 Act.
The arbitration agreement between the parties has been quoted in the body of the petition. It appears from the clause that the relevant Chief Engineer of the Public Works Department of the first respondent is the appointing authority. Accordingly, it is directed that the authority of the arbitrator who had conducted the reference will stand revoked and that the reference will be taken up from the position that it had reached by a new arbitrator to be appointed by the relevant Chief Engineer of the Public Works Department of the State of West Bengal. The appointment should be made by the relevant Chief Engineer within a fortnight from the receipt of an authenticated copy of this order.
The reference is to be concluded by the arbitrator within a period of four months from the date of receipt of his letter of appointment.
In the event the Chief Engineer does not appoint an arbitrator within the time stipulated, it will be open to the petitioner to nominate a person as the arbitrator and such nominee will then have authority to 4 enter upon the reference as arbitrator and continue the reference from the stage where it had been left off.
AP No.2196 of 1994 is disposed of without any order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SANJIB BANERJEE, J.) sg./bp.