The court held that the appointment of the arbitrator was not without jurisdiction, that the reference was not void, that sufficient notice was given to the respondent, that the arbitrator was not biased, that there was no legal misconduct, and that the Limitation Act applied to the arbitration proceedings.

N. K. DAS, J.

( 1 ) APPELLANT is a contractor under the Orissa Forest Corporation for transport of round timbers and an agreement had been entered into by the parties on 11-81978. The Divisional Manager of the respondent had signed the agreement on behalf of the respondent. As disputes arose between the parties, the present appellant instituted O. S. No. 41/79-I under Section 20 of the Arbitration Act for appointment of an arbitrator. The court appointed one Shri S. H. Rao, an advocate of Jeypore as the arbitrator. The arbitlator called upon the parties to file statements of claims. In pursuance of the notice of the arbitrator, the present appellant appeared and filed his statement of claims, but the respondent did not appear nor participated in the arbitration proceedings. The arbitrator passed an award for Rupees 2,25,000. 00. The said award was challenged by the present respondent under Sections 30 and 33 of the Arbitration Act and the application of the respondent was registered as Misc. Case No. 240/80. It was alleged that the appellant did not transport the entire quantity of timber and did not perform any work in some coupes. Therefore, the Divisional Manager got the work done with the help of other contractors. Without raising any dispute, the appellant filed an application under Section 20 of the Arbitration Act for appointment of arbitrator. With fraudulent design, the appellant impleaded the Divisional Manager representing the Orissa Forest Corporation, though the Divisional Manager had no authority to represent the corporation in legal matters. No notice was served on the corporation or any other principal officer of the corporation. By practising fraud on the court, the appellant got Shri Rao appointed as arbitrator, who is a retained lawyer and the legal adviser of the appellant. It was further pleaded that according to the arbitration clause, any dispute arising shall be decided on the sole arbitration of the Chairman of the Corporation, or the Managing Director, or the Chief Executive Marketing, as may be nominated by the Chairman. In case the said Chairman or the Managing Director or the Chief Executive Marketing, as the case may be, is not available or willing to be the arbitrator, then the arbitration clause would be ignored and considered as non-existent. Thus, according to the respondent, the arbitration clause does not provide for appointment of any outsider as arbitrator. If the named arbitrators are not available or willing to act as arbitrator, the arbitration clause was non-operative. In order to appoint an outsider as arbitrator, there should have been a proceeding to remove or revoke the authority of the appointed arbitrator. It was further contended that Shri Rao, the arbitrator, was a retained lawyer for the appellant and he did not give any proper notice to the respondent while hearing the arbitration matter ex parte. Whatever notice was sent by the arbitrator was to the Divisional Manager who was not authorised. In short, the respondent contended that the reference was void and the award suffered from legal misconduct of the arbitrator.

( 2 ) THE appellant filed a counter-affidavit denying the allegations of the respondent and contended that the Divisional Manager was a party to the agreement and, as such, he was the proper party. The allegation that the arbitrator was the retained lawyer was denied. It was further contended that in spite of notice by the arbitrator nobody appeared on behalf of the respondent and, as such, the arbitrator had acted according to law and there was no fraud practised and the award was a proper one.

( 3 ) UNDISPUTEDLY, a decree was passed in O. S. No. 41/70 which was filed under Section 20 of the Arbitration Act. The present respondent filed an application under Order 9, Rule 13 of C. P. C. to set aside the ex parte decree. In the said application, one of the main contentions of the respondent was that the Divisional Manager was not authorised to issue order to be