JUDGMENT

S.B. Majmudar, J.-Leave granted.

2. We have heard the appellant in person and learned counsel for the respondent.

3. This appeal arises from the common judgment and order of the High Court in two arbitration petitions whereunder it has been found that the prayer for supercession of the arbitrator as moved by the present appellant could not be granted. Thus the Arbitration Petition No. 242 of 1997 filed by the appellant was rejected by the High Court, but the Cross-Arbitration Petition No. 239 of 1997 which was filed by the respondent for extension of time to be granted to the arbitrator to make the award was granted.

4. A few facts leading to this appeal may be noted at the outset.

On 20th October, 1985, a Deed of Partnership was executed between the parties and one Rajan Tulsidas Sipahimalani, to carry on business of running a Restaurant. The business was carried on in the name of M/s Cactus Restaurant and Bar, situated at Shanti Centre, Sector 17, Vashi, New Bombay. Subsequently, Rajan Tulsidas Sipahimalani retired from the partnership and business was continued by the present parties. In connection with the said business, dispute arose and, therefore, it appears that the appellant filed Special Civil Suit No. 658 of 1990 in the Court of Civil Judge, Senior Division, Thane, for a declaration that the partnership stood dissolved with effect from 22nd October, 1990. On the first day of the hearing of the said suit, the respondent appeared and filed an application under Section 34 of the Indian Arbitration Act, 1940 invoking arbitration clause and asking for stay of the suit. The learned Joint Civil Judge, Senior Division, Thane, allowed the application of the respondent for stay of the suit on 25th September, 1992. Against that order, Writ Petition No. 1322 of 1993 was filed in the High Court by the appellant, but the petition came to be dismissed.

5. As per arbitration clause in the agreement of partnership, each party was to appoint Arbitrator of his or her choice. Accordingly, the respondent nominated Mr. Justice M.N. Chandurkar, retired Chief Justice of the Madras High Court as her Arbitrator and the appellant was called upon to nominate his Arbitrator. He nominated one Mr. P.D. Desai as his Arbitrator but as his particulars were not supplied, the said Arbitrator could not be contacted. Under these circumstances, respondent filed Arbitration Petition No. 89 of 1993 under Section 8 of the Indian Arbitration Act, 1940. In that Arbitration petition, Justice Dhanuka of the High Court on 28/6/1993 appointed Mr. M.N. Chandurkar as sole Arbitrator. However, subsequently, Justice Chandurkar withdrew from the arbitration. Thereafter, the appellant filed Arbitration Petition No. 94 of 1996 for appointment of Arbitrator and in the Petition he made an application for appointment of the Receiver etc. That petition came to be decided by Mrs. Justice Baam on 4th June, 1996 and by order she rejected the prayer of the appellant for appointment of Receiver, but as regards appointment of Arbitrator, Justice Lentin, retired Judge of the Bombay High Court came to be appointed as sole arbitrator and four months time was specified for making the award from the date of entering upon reference.

6. It appears that Justice Lentin also subsequently refused to act as Arbitrator. Thereafter, the appellant filed another Arbitration Petition No. 213 of 1996 for appointment of the Arbitrators and thereafter, on the Minutes of the Order signed by the Parties, Mr. Justice Jhunjhunwala of the Bombay High Court disposed of the petition by his order in terms of the Minutes and appointed Justice Pendse, retired Chief Justice of the Karnataka High Court and Mr. M.N. Dama as Arbitrators. It appears that though the arbitration proceedings went on for some time both the learned Arbitrators resigned their respective assignments. Even though the time period for making the award was extended by the Court till the end of August, 1997, the award could not be made. I