JUDGMENT
K.S. Gupta, J.
1. The petitioner filed this petition under Section
11(6) of the Arbitration and Conciliation Act, 1996 (for
short ‘the Act’), interalia, alleging that it is engaged in
the manufacture of Polythene Insulated Jelly Filled
telephone cables. Pursuant to tender No. 14-21/94-MMT (MMS)
dated 30th November 1994 for procurement of 352 LCKM
underground cables in various sizes and types floated by
the respondents the petitioner submitted bid(s) which was
accepted by respondents. As per terms of contract the
petitioner was entitled to a minimum order to the extent of
20% of the tender quantity. Tender Evaluation Committee
evaluated the tender differently and finalised the
allocation of order to petitioner to the extent of 27.60
LCKM leaving a shortfall of 8.4 LCKM. Further, the
respondent withheld releasing 1.04 LCKM out of purchase
order of 22.34 LCKM again leaving shortfall of 1.04 LCKM
making the total shortfall of 14.7 LCKM. It is alleged
that the action of respondents in not placing purchase
order for the balance quantity was wholly malafide. So,
the petitioner filed CWP No. 1200/97 in this court but in
view of arbitration clause appearing in tender documents
the same was disposed of by the order dated 17th February
2000 with direction to the respondents that as and when the
petitioner invokes arbitration clause, an arbitrator would
be appointed. Vide letter dated 26th February, 2000 sent
through lawyer the petitioner invoked the arbitration
clause. By the letter dated 25th April 2000 the
respondents conveyed the appointment of
K.L. Jain, G.M. (Development), Haryana Telecom Circle as
arbitrator to decide the disputes. Vide letter of May 2000
the respondents informed the petitioner that since K.L. Jain
has expressed his unwillingness to act as arbitrator, Ram
Kumar, G.M. (A & P) UP (W) Telecom circle, Dehra Dun has
been appointed in his place. Vide letter dated 27th June
2000 this arbitration asked the petitioner to file claims
which the petitioner submitted on 27th October 2000. As
the said arbitrator did not held even a single hearing
after the filing of claims, the petitioner vide letter
dated 14th February 2001 requested him to proceed in the
matter. It appears that said arbitrator was not interested
to continue as arbitrator. So, vide letter dated 23rd
March 2001 the petitioner requested Director Genera,
Department of Telecommunication, New Delhi, to appoint
another person to act as arbitrator. Despite receipt of
above letter the said Authority has failed to appoint
another arbitrator. It was prayed that an independent
arbitrator preferably a retired Judge of this court may be
appointed as arbitrator to decide the disputes.
2. In the short reply filed on the affidavit of
R.N. Bhagat, Assistant Director General (ST) it is stated
that a decision has been taken on 4th October 2001 to
appoint R.K. Tyagi, G.M. (Dev), Haryana Telecom circle in
place of Ram Kumar as arbitrator and the petition has,
thus, been rendered infructuous.
3. In the rejoinder filed to reply on the affidavit
of P.K. Sharma, Dy. Manager (Legal) of petitioner, it is
stated that petitioner is not agreeable to the appointment
of R.K. Tyagi as arbitrator as he has been monitoring OMP
No. 251/01 filed by the Department against petitioner
company challenging the award dated 7th August 2000 made by
Justice P.K. Bahri (Retd).
4. Order dated 3rd May 2002 notices the statement
made by Sh. Jayant Bhushan for respondents that Ram Narain,
G.M. (Vigilance) MTNL has now been appointed as arbitrator in
place of R.K. Tyagi. This order further notices the
statement made by Sh. S.K. Gupta for petitioner that
petitioner is also not agreeable to the appointment of Ram
Narain as arbitrator. Thereafter on 5th September 2002 the
petitioner filed affidavit of said P.K. Sharma opposing the
appointment of Ram Narain alleging that he has been
actively participating before Justice P.K. Bahri (Retd) in
two arbitration matters arising out of Suit No. 163 and 164
of 1997 on behalf of the Department and this gives rise for
justificable doubt as to his independency/impartiality.
It is further alleged that the Appointing Authority did not
have jurisdiction and power to appoint an arbitration during
the pendency of present petition.
5. Main thrust of argument advanced by Sh. S.K. Gupta
was that as R.K. Tyagi was appointed as arbitrator much
beyond the period of 30 days of the service by the
petitioner of notice dated 23rd March 2001, this court
alone had the jurisdiction to appoint arbitrator. In
support of submission, my attention was drawn to the
provision contained in Sub-sections (5) and (6) of Section
11 of the Act as also the decision in Datar Switchgears Ltd.
v. Tata Finance Ltd. and Anr., (2000) 8 SCC 151.
However, the submission is without any merit. The
provisions of said Section 11(5) and (6) will not be
attracted as admittedly Ram Kumar was in position as
arbitrator on the date notice dated 23rd March, 2001
demanding appointment of arbitrator was issued by the
petitioner. In case Ram Kumar who has been replaced by
R.K. Tyagi and again by Ram Narain, had failed to act
without undue delay, as alleged, the remedy open to
petitioner was to file petition under Section 14(1)(a) of
the Act for his removal. Further, appointment of Ram
Narain as arbitrator on 19th April, 2002 can be assailed by
taking resort to challenge procedure as provided in Section
13 of the Act alone and not in present petition. Datar
Switchgears’ case (supra) has no applicability to the facts
of this case.
6. Consequently, the petition is dismissed being
without merit. No order as to costs.