Judgment

AMITAVA ROY, C.J. Heard Mr. S.K.Acharya, learned counsel for the applicant-M/s. Dredging & Desiltation Co. Pvt. Ltd. and Mr. S.P.Sarangi, learned counsel for the opposite party-Board of Trustees of Paradip Port Trust(for short referred to also as PPT/Board).

2. A brief outline of the factual backdrop is essential, more particularly as the instant application has been filed in ARBP No. 25 of 2007 registered under Section 11 of the Arbitration and Conciliation Act, 1996 (for short referred to as ‘the Act’) since been disposed of on 8.8.2008 by appointing Mr. Justice D.P.Mohapatra, Former Judge of the Hon’ble Supreme Court as the Presiding Arbitrator in terms of the arbitration agreement involved.

3. The petitioner-Company, engaged in dredging and desiltation works was awarded contract at Paradip Port under Tender Call Notice No. MD/SHS/TECH-24/92 dated 16.11.1992 being part of the Agreement No. CE/PPT/No. 11 of 1994-95 dated 11.5.1994. Certain disputes arose with respect to some of the claims of the petitioner in the works under the aforesaid tender/agreement covered by the Arbitration Clause/Agreement between the parties which stood in the following terms as per clause 2.34.4 of the Conditions of Contract.

“2.34.4. All dispute between the parties other than these covered by clauses where under the decisions of Deputy Conservator is stated to be final shall be referred to two arbitrators ( one to be nominated by the contractor and one by Board). In the event of any difference in opinion between the said two arbitrators, the same shall be referred to an umpire to be appointed by the said arbitrators in writing. The decision of the umpire shall be in writing and shall record reasons for the decision and shall be final and binding on all parties to the contract. The provision of the Indian Arbitration Act, 1940 and the rules thereon under and any statutory modification thereof shall be deemed to apply to such reference and deemed to be incorporated in the contract. The award will be a speaking award.”

4. As per the Arbitration Agreement as above, all disputes between the parties other than those excepted were to be referred to two arbitrators (one by the contractor and one by the Board) and in the event of difference of opinion between the said two arbitrators, the same was to be referred to an Umpire to be appointed by the said arbitrators in writing.

5. With the advent of the Act, following failed endeavours to appoint a third arbitrator as statutorily mandated, an application was filed under Section 11 of the Act before this Court for such appointment. In Arbitration Petition No. 25 of 2007 so registered, this Court to reiterate, by its order dated 8.8.2008 after hearing the parties, appointed Mr. Justice D.P.Mohapatra, Former Judge of the Hon’ble Supreme Court as Presiding Arbitrator to decide the disputes between the parties and pass the award.

6. The instant application reveals that the Arbitration Tribunal constituted of Hon’ble Mr. Justice D.P.Mohapatra, Presiding Arbitrator, Mr. Amalendu Chakravorty, (Arbitrator of the petitioner) and Mr. Saroj Misro, (Arbitrator of the Paradip Port Trust) entered into the reference. As the proceedings could not be completed within the time fixed by this Court, on an application being made, by order dated 4.3.2011 in Misc. Case No. 22 of 2010, further four months time was granted. According to the petitioner, the arguments on behalf of the both the parties were thereafter concluded and written notes were also submitted.

On the culmination of the hearing, learned Arbitral Tribunal fixed for the meeting of the Arbitrators on 15th, 16th, 17th and 18th July, 2012 at Cuttack, but Mr. Saroj Misro, the nominated Arbitrator of the opposite party did not attend the same. The petitioner has averred that the Secretary of the Arbitral Tribunal having enquired of this, Mr. Saroj Misro informed that he was under suspension from his post as Traffic Manager of Paradip Port Trust and thus, it was n