An arbitrator is not disqualified from accepting a brief of a party in a different case, even if the parties have agreed to appoint him as arbitrator, unless there is evidence of professional misconduct or disqualification.

AVADH BEHARI ROHATGI, J. (ORAL)

( 1 ) THIS is an application undar sections 5 and II of the Arbitration Act, 1940 (the Act) for the removal of the sole arbitrator Shri S. N. Mukherjee.

( 2 ) ON an application under section 20 of the Act filed by the contractor Mjs. Anand Builders I appointed on 6th April. 1981 Mr. S. N. Mukherjee as the sole arbitrator. Mr. Mukherjee is an advocate. He appears before the arbitrators in disputes arising out of building contracts. Both the employer Mrs. Driplex Water Engineering (P) Ltd. and the contractor Anand Builders agreed on the name of Mr. Mukherjee. I, therefore, appointed him.

( 3 ) ON 15th April, 1981 my order was communicated to Mr. Mukherjee. On 30th August, 1981 he wrote to the parties. In that letter he said that he had received on that very day a letter dated 21st April, 1981 from the contractor through his advocate, Mr. N. S. Sistani, asking him to enter upon the reference. On 24th September, 1981 the present application was filed by the employer, M/s. Driplex Water Engineering (P.) Limited , for the removal of the arbitrator.

( 4 ) THERE are disputes between the contractor and the employer. Construction work was awarded to the contractor by the employer. Disputes arose between the parties. Those disputes were REFERRED TO to the sole arbitration of Mr. S. N. Mukherjee by agreement of the parties. Now the employer seeks removal, of the arbitrator. Mr. Kapur has urged three grounds in support of the application. In the first place he says that the arbitration clause provides for a reference to two arbitrators, one to be nominated by such party. But with a desire to settle the disputes expeditiously he agreed to the appointment of Mr. S. N. Mukherjee. Mr. Mukherjee was appointed by agreement of the parties as the Sole arbitrator. Therefore the employer Willingly gavand up his right to the appointment of an arbitrator by him in terms of the clause. That the clause entitles each party to nominate his arbitrator is of no avail in view of the agreement that was reached before me on the sole arbitrator, Mr. S. N. Mukherjee, Advocate.

( 5 ) SECONDLY counsel raised and more serious objection. He said that after the appointment of Mr. Mukherjee by this court on 6th April, 1981 the employer has come to know that Mr. Mukherjee has accepted an engagement in another case of the contractor. He argued that once Mr. Mkherjee has accepted. the office of an arbitrator he should not have agreed to appear on behalf of the contractor in an arbitration case, even though it is a different case. This acceptance of engagement, counsel says, has shaken his confidence in the arbitrator and this, according to him, is the chief ground for his removal. I do not agree with this broad submission.

( 6 ) IN Paragraph II of the application the employer said that he "has been informed that the said Shri S. N. Mukherjee, Advocate Is now acting as alegal consultant to the plaintiff in a dispute between the plaintiff and one M/s. Kothari and Associates, Architects . This fact was not known to the petitioner at the time Shri Mukherjee was appointed as sole arbitrator. " This is the chief complaint. In his reply, the contractor has said :

"shri S. N. Mukherjee has been looking after the affairs and has been advising both the parties at one occasion or the other and this fact was in the complete knowledge of both the parties at the time when his name was proposed. Shri S. N. Mukherjee had been consulted by both the parties in some of their other cases and on account of that reas on both the parties had the confidence that he would discharge his duties impartially and judiciously and keeping that fact in view, the parties agreed in proposing his name as a sole arbitrator. " In the rejoinder this is the reply of the employer to the allegation of the contractor : "the applicant submits that Shri S. N. Mukherjee can be enquired as to whether he has acted as counsel for the plaintiff before Shri J. R. Bhalla, Arbitrator, in the

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