1995 Supreme(Bom) 388

IN THE HIGH COURT OF BOMBAY
S.M. Jhunjhunuwala, J.
International Airports Authority of India.... Petitioners.
Versus
M/s. Mohinder Singh Co..... Respondents.
Arbitration Petition Nos. 188, 200 201 of 1988, decided on 5-9-1995.
Advocates appeared :
M.H. Shah with M.P.S. Rao and S.D. Shetty i/b M/s. M.V. Kini Co., for the petitioners.
T.N. Subramanian with Ms. Sekhar i/b M/s. Mulla Mulla Cragie Blunt Caroe, for respondents.

Headnote:ARBITRATION ACT, 1940

       Section 2 (a) - Arbitrator-Appointment of-Persuns appointing arbitrator themselves and accepted appointment by long participation in such proceedings before arbitrator-It would neither be valid nor proper to dispute against appointment of arbitrator-Successive reference of various disputes arising under same agreement held, valid-Arbitrator entitled to decide about his authority to proceed with reference and also adjudicate pulmonary objections.

       As per the arbitration agreement between the petitioners and the respondents, the disputes were required to be referred to the sole arbitration of the person appointed by the Chief Engineer of the petitioners-in-charge of the work at the time of the disputes or if there be no Chief Engineer, the Head of the Department of Engineering of the petitioners at the time of such appointment. It is, therefore, clear that the sole arbitrator was required to be appointed by the Chief Engineer of the petitioners-in-charge of the work at the time of the disputes and it was only if there was no such Chief Engineer that the arbitrator was required to be appointed by the Administrator or the Administrative Head of the Department of Engineering of the petitioners - In each of the aforesaid reference the arbitrator was appointed by the Chief Engineer of the petitioners-incharge of the work at the time of arising of the disputes between the petitioners and the respondents and consequently the appointment of the sole arbitrator on each occasion was in consonance with the said arbitration agreement and all such, valid and legal. The disputes which constituted the subject matters of the first reference, the second reference and the third reference consisted only of such disputes which were referred by the Chief Engineer of the petitioners to the arbitrator who was appointed in accordance with the arbitration agreement between the petitioners and the respondents. Once the arbitrator in accordance with the said agreement to refer the disputes to arbitration between the petitioners and the respondents was appointed the disputes and or claims and/or counter-claims arising out or in relation to the contract could be referred to the arbitrator by or at the instance of either of the parties to the contract and this exactly was done in the said references. Needless to state that in arbitration proceedings under same arbitration agreement, successive references of various disputes arising from time to time under the same contract between the parties thereto can be referred to arbitration and he made the subject-matter of successive references.

       Section 30-Avenue-It can be changed by arbitrator-Arbitrator entitled to give award after considering statements of parties, documentary evidence and arguments-He can reject certain claims fully and other only partly by giving reasons for his conclusions-It cannot be said that he exceed his jurisdiction - High Court not empowered to interfere with amount awarded not unconscious able or shockingly high.

       There is no substance whatsoever in the contentions of the petitioners that the arbitrator misconducted himself merely by changing the avenue of arbitration for the petitioners officer at Santa Cruz to Indian Merchant Chambers Hall at Churchagate more particularly when the Indian Merchant Chambers Hall was considered to be more convenient avenue whereat all parties could attend to the proceedings before the arbitrator without any difficulty. The contentions of the petitioners that the arbitrator is also devoid of any merit. In this regard it would be appropriate to mention that the petitioners had filed an Arbitration Petition No. 234 of 1987 in this Court for revoking the authority of the arbitrator also on the ground that the arbitrator had bias approach. By the judgment dated l/2nd February, 1988 delivered in the said petition, the petition was dismissed with costs. While dismissing the said petition, Pendse of this Court observed as under :

       "It is sad and distressing that the petitioners, which is a Government undertaking and which has chosen to appoint respondent No.1 who is holding high Government Office and has a specialised knowledge in Engineering should make wild allegations questioning the integrity of respondent No. 1 on frivolous grounds. It does not lie in the mouth of the petitioners to make such allegations when respondent No.1 was chosen by the Chief Engineer of the petitioners as the arbitrator and merely because respondent No.1 refused to submit to whatever arguments are advanced on behalf of the petitioners. The party contracting with the petitioners is compelled to go to the arbitration of the arbitrator as nominated by the petitioners and thereafter it is extremely wrong on the part of the petitioners to make allegations against the arbitrator, because the arbitrator does not accept their contention. In case the petitioners are permitted to make these allegations and succeed thereunder, then the party contracting with the petitioners would lose faith in the arbitration proceedings,"

       No party should be allowed to throw the arbitration proceedings by such tactics and if the arbitrator has not surrendered to presence, in Court opinion, the arbitrator cannot be faulted on that score nor the proceedings of the arbitrator be allowed to be defeated by such method.