Judgment

SABYASACHI MUKHARJI, J.:- These are petitions under Art. 136 of the Constitution seeking leave to appeal against the judgment and order of the High Court of Madras dated 31st July, 1987. The petitioner company undertook the work of widening and strengthening pavement in National Highway No. 7, Madurai-Kanyakumari Road from Reaches 37.6 k.m. to 213 k.m. on the Madurai-Kanyakumari Road and the work was divided into fourteen Reaches and 14 separate agreements were entered into between the petitioner and the Superintending Engineer, National Highways, Tirunelveli, respondent No. 3 to the present petitions. There is not much dispute on this point. At the relevant time, according to the petitioner, the Superintending Engineer, National Highways, Salem was one Thiru Mohan. He entered into reference. He took up the matter for arbitration and called for statements from the parties. Statements were filed before him and evidence was also adduced before him. But before he could complete the adjudication he was transferred and was succeeded by the Thiru J.R. Cornelius, Superintending Engineer. The contention of the petitioner in this case was that he had no jurisdiction to proceed and complete the arbitration. It appears however, that he entered into the task of adjudication with the knowledge and consent of the petitioner and the petitioner had his active participation in the proceeding before him. From the notices served by Thiru Mohan previously and subsequently by Thiru Cornelius, it is apparent that the petitioner had knowledge of the change of the incumbent of the Superintending Engineer who was to arbitrate in the matter. This is evident from the documents appearing at pages 164 and 165 of the present paper book and both the parties had notice of the succession in office. The arbitrator could not complete the award within time and there was need for extension of time. He wrote a letter to the petitioner on 1st May, 1977 stating "extension of time was necessary to pass orders on reference and hearing has been concluded." In reply to that letter on 11th May, 1977 the petitioner agreed to such extension. The petitioner rest content with that situation and never asked for any further or fresh opportunity either to make any submission or to adduce any evidence. In that light the arbitrator has made the award. This was challenged before the learned District Judge by means of a suit under Ss. 30 and 33 of the Arbitration Act, 1940 that the previous arbitrator Thiru Mohan having entered into reference Thiru Cornelius had no jurisdiction to conclude. It was violative of the principles of natural justice, it was submitted. But as mentioned hereinbefore, the petitioner had knowledge of the change of the incumbent. He did not protest and the proceedings went on before Thiru Cornelius. It is apparent from the terms of the agreement between the parties that the Superintending Engineer of the Circle for the time being was the named arbitrator. The learned District Judge held that Thiru Cornelius was competent to pass the award. The High Court also upheld that and rejected the challenge to the award on this ground made by the petitioner.

2. Shri A.K. Sen, learned counsel for the petitioner urged before us that once an arbitrator had entered into reference, the next incumbent could not conclude the said arbitration proceeding without a fresh agreement. In the facts of this case, as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor, namely, Thiru Cornelius, we are of the opinion, that this contention of Shri Sen cannot be entertained. It was contended that there was violation of the principles of natural justice. This objection cannot be entertained. If the parties to the reference either, agree beforehand to the method of appointment, or afterwards acquiesce in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointmen