Arbitrators must be impartial and capable of performing their duties; prolonged inaction in arbitration proceedings justifies termination of their mandate.

JUDGMENT

Neena Bansal Krishna, J. The petitioner has filed under Sections 14(1) and 15(2) of the Arbitration and Conciliation Act, 1996(hereinafter referred to as "A & C Act, 1996") seeking termination of the mandate of the Arbitral Tribunal and appointment of retired judge/s of the High Court as co-arbitrators and also as presiding arbitrator.

2. Facts in brief are that the petitioner-M/s. National Projects Construction Corporation Ltd. was awarded the Tender for construction of BG Single Line Tunnel No. 5 (Bakkal Tunnel) from Km. 46.040 to Km. 48.940 on the Katra - Laole Section of USBRL Project. The estimated cost of the Tender was of Rs.171,11,15,718/-. The original date of the work commencement was in March, 2004 and the completion period was 34 months i.e., 31st December, 2006. An extension of time was requested up to 31st December, 2012 and the ad hoc extensions were granted up to 31st December, 2008 and 31st July, 2010.

3. It is submitted that during the execution of work, various disputes arose between the parties and in terms of the Clauses 53, 54 and 55 of Special Conditions of Contract Agreement and Clause 64 of General Conditions of Contract. The respondent and the petitioner entered into a Supplementary Agreement of Arbitration.

4. A set of claims up to 31st January, 2008 (hereinafter referred to as "Claims Set No.1") were taken up for adjudication by the then constituted Arbitral Tribunal, comprising of Mr. Y.P. Singh, Mr. H.S. Yadav and Mr. S. Balachandran as the Arbitrators in the year of January, 2008 and an Award dated 21st February, 2012 was pronounced which was received by the petitioner on 01st March, 2012. The Award was challenged under Section 34 of A & C Act, 1996 and is pending at the stage of arguments.

5. Since January, 2008, despite the disputes having arisen between the parties and the petitioner having suffered huge losses, it continued to perform the execution of the work until the issuance of Order about the pending works on 25th July, 2008. The respondent taking note of the facts that the Contract in its present form is non-performable proceeded to foreclose the Contact w.e.f. 28th January, 2010. It re-issued NIT in May, 2010 for execution of the balance work of Tunnel T-5 works by incorporating modified methodology, new bill of quantity at an estimated cost of Rs.224.09 crores with several extra items and with a completion time of 48 months for execution of balance works.

6. In the peculiar circumstance, it was asserted that the bid floated in the year 2004 and the foreclosure of Contract was based on mis-projections of information, unrealistic quantities and impracticable methodologies and targets and the Contract in its present form, became a non-performable one.

7. The petitioner suffered losses since 01st February, 2008 which is subsequent to the foreclosure of the Contract which was found non-performable. The petitioner submitted compensation in three different groups for the consideration of the respondent, but the same was rejected.

8. Because of the differences and disputes, a Tribunal comprising of three Members was constituted for settlement of disputes and Statement of Claims was filed befor