High Court Of Delhi
UNION OF INDIA - Appellant
Versus
SOM NATH CHADHA AND COMPANY - Respondent
First Appeal (OS) 145 of 1982
Decided On : 01/31/1984
ARBITRATION - APPOINTMENT OF ARBITRATOR - UNILATERAL REFERENCE - REVOCATION OF AUTHORITY - UNREASONABLE DELAY - ARBITRATION ACT, 1940, SECTION 33.
Fact of the Case:
The Union of India entered into an agreement with M/s Som Nath Chadha and Co. for the sale of properties by public auction. The agreement contained an arbitration clause providing for the appointment of an arbitrator by the Secretary of the Government of India. A dispute arose between the parties, and the Secretary appointed an arbitrator. However, the arbitrator failed to make the award within the prescribed period and resigned. The Secretary then appointed a new arbitrator, who was challenged by the respondent on the ground that the reference was invalid being a unilateral reference.
Finding of the Court:
The court held that the reference of the dispute to the arbitrator was invalid being a unilateral reference. It further held that the arbitrator had become functus officio and, therefore, there was no question of appointing a new arbitrator in his place. The Union of India was guilty of laches and gross negligence and had failed to make out a case for extension of time. With these findings it was held that the arbitration agreement had ceased to have any effect and the authority of the arbitrator was liable to be revoked.
Issues: 1. Whether the reference of the dispute to the arbitrator was invalid being a unilateral reference? 2. Whether the arbitrator had become functus officio and, therefore, there was no question of appointing a new arbitrator in his place? 3. Whether the Union of India was guilty of laches and gross negligence and had failed to make out a case for extension of time?
Ratio Decidendi: The court held that the reference of the dispute to the arbitrator was invalid being a unilateral reference. It further held that the arbitrator had become functus officio and, therefore, there was no question of appointing a new arbitrator in his place. The Union of India was guilty of laches and gross negligence and had failed to make out a case for extension of time. With these findings it was held that the arbitration agreement had ceased to have any effect and the authority of the arbitrator was liable to be revoked.
Final Decision: The court dismissed the appeal and upheld the order of the learned Single Judge revoking the authority of the arbitrator.
( 1 ) THIS appeal is directed against the order of the learned Single Judge dated August 27, 1982. It was dismissed by us by a short order dated January 25, 1984, Now we proceed to give reasons for that order.
( 2 ) MESSRS Som Nath Chadha and Co. , respondent herein, entered into a contract with the President of India on June 25, 1969. Under that agreement it Was appointed a member of the panel of auctioneers for conducting sales by public auction of such properties the Director General of Supplies and Disposals, Ministry of Works and Housing and Supply, Government of India, New Delhi, may from time to time, at his discretion entrust to it for disposal by auction. The agreement contained arbitration clause, namely, clause 15, which reads as under.
"15. All disputes and differences arising out of or in any way touching or concerning this agreement whatsoever, shall be referred to the sole arbitration of any person nominated by the Secretary of the Government of India or if there be no Secretary, the administrative Head of the Ministry of the Government of India under whose administrative control the DGS and D may be placed for the time being at the time of such nomination. There will be no objection to any such appointment that the person appointed is a Government servant, that he had to deal with the matters to which the agreement relates and that in the course of his duties as such Govt. servant he has expressed any views on all or any of the matters indispute or difference. The award of such arbitrator shall be final and binding on the parties to this agreement. It is a term of this agreement that in the event of such arbitrator to whom the matter is originally referred being transferred or vacating his office by resignation or otherwise or becoming unable to act for any reason, such secretary or administrative Head as aforesaid at the time of such transfer, vacation of office or inability to act, shall appoint another person to act as Arbitrator in accordance with the terms of this agreement. Such person 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 this agreement that no person other than a person nominated by the Secretary or Administrative Head of the Ministry as aforesaid should act as arbitrator and, if for any reason that is not posssible, the matter is not to be referred to arbitration at all. Subject as aforesaid, the Indian Arbitration Act 1940 shall apply to the arbitration proceedings under this clause. "
( 3 ) THE respondent, it appears, realised sales tax from the purchasers of the properties sold by auction held by it. Alleging that the Excise and Taxation Officer, Jullundur, had held that the respondent did not fall under the definition of a dealer as defined under section 2 (d) of the Punjab Sales Tax Act and had refunded a sum of Rs. 1. 90,864. 36 deposited by the respondent towards sales tax to it, the appellant, Union of India, claimed a sura of Rs. 1,02,609. 87 on account of the sales tax realised by the respondent acting an their agent during the period July 1971 to November 1971. The respopdent disputed the claim. The Director General Supplies and Disposals requested the Secretary to the Government of India, Ministry of Supply and Rehabilitation, to appoint a sole arbitrator under the terms of the arbitration clause to adjudicate upon the said dispute. The Secretary, consequently, appointed Shri N. S. Mehta, Additional Legal Advisor to the Government of India, as the sole arbitrator by order dated December 16, 1976. There is nothing on the record to show whether he entered upon the reference or resigned and vacated his office and, if so, when. However, by an order dated December, 22, 1977, the Secretary concerned appointed Dr. Bakhshish Singh, Additional Legal Advisor, as the sole arbitrator, to adjudicate upon the dispute.
( 4 ) DR. Bakhshish Singh entered on the reference and called upon the Union of India
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