The death of an Arbitrator results in a vacancy that requires the appointment of a new Arbitrator in accordance with the procedure laid down in the Arbitration Act, and the surviving Arbitrator does not have the authority to act individually in delivering the award.

A. M. SAPRE, J. - Could the surviving Arbitrator deliver an award on the death of Co-Arbitrator which occurred pending arbitration reference before them and whether such an award delivered by surviving Arbitrator be made rule of Court under the repealed Arbitration Act was the question posed by the learned trial Judge while deciding the lis that was before him and out of which this appeal eminates. By impugned order, the learned trial Judge has answered the aforementioned question in affirmative and accordingly made the award rule of Court. The impugned order was rendered on 23.12.1996 by Ist ADJ, Ratlam in Civil Suit No. 18-A/88. It is this order which is impugned by the appellants in this appeal filed under Section 39 of the Arbitration Act. To appreciate the grievance urged by the appellants few relevant facts need mention.

2. Parties to this appeal (litigation) are real brothers all being sons of late Dhanraj who owned extensive immovable properties. On his dealth, presumably intestate disputes arose between his sons, i.e., present appellants and respondents regarding extent of each share in all the immovable properties left by their late father. This led to an agreement between the parties for referring the disputes to be resolved by the 2 Arbitrators namely, Motilal s/o Deepchand and Nihalchand s/o Ladarchand. Since the reference was not made to these Arbitrators despite agreement, parties invoked Section 20 of Arbitration Act, 1940 (since repealed) by making an application to the Court being Case No. 1/78. The learned Judge by its order dated 5.3.1979 made the reference to Arbitrators which as stated above consisted of Motilal and Nihalchand. The Arbitrators were asked to decide the disputes which had arisen between the parties in relation to their share in the immovable properties and to effect partition. The Arbitrators accordingly embarked upon the reference but could not complete the proceedings in time. The Court then by its order passed on 28.1.1980 in Case No. 7/79 extended the time to enable the Arbitrators to complete the proceedings and pass in award.

3. On 23.12.1982 the Arbitrators delivered an award. It was then filed by the Arbitrators themselves in Court passing a decree in terms thereof in Case No. 18-A/82 (16-A/88). In these proceedings, the respondent No. 2, Amritlal filed objections and contended that the award be not made rule of Court. The trial Court by its order dated 30.11.1989 upheld the objections and set-aside an award. The case was remanded to the Arbitrators for passing a fresh award. Consequent upon the remand, the matter was again taken up by the Arbitrators. It is at this point of time, one of Arbitrator, Motilal died. Even then, it appears as it is clear from the record that other Arbitrator Nihalchand continued with the arbitration proceedings and on 19.2.1990 rendered an award. It is this award which was again filed in the Court for making the same rule of Court. The award was filed by Nihalchand Arbitrator through lawyer Shri Vyas. It may be mentioned that this award was identical to the one earlier passed.

4. The appellants objected to filing of the aforementioned award essentially on the ground that on the death of Motilal i.e., Co-Arbitrator no award could be delivered by Nihalchand, i.e., another Arbitrator. This objection was overruled by the learned trial Judge. In the opinion of learned trial Judge the death of Motilal (one Arbitrator) does not affect the pending arbitration proceedings nor it has any adverse impact on the jurisdiction of surviving Arbitrator to proceed ahead in arbitration proceedings for delivery of an award. It is on the basis of this reasoning, the learned trial judge upheld an award rendered by surviving Arbitrator-Nihalchand. It is this order rejecting the objection of appellant which is impugned in this appeal by the appellant.

5. Heard Shri V. A. Katkani, LC for the appellants (objectors to an award). None for the respondents though served.

6. Lea