Hemkunt Builders Pvt. Ltd. vs Punjabi University, Patiala on 25 November, 1992

JUDGMENT

Chaudhry, J.

(1) By an agreement in writing dated 30.1.1984 M/s.Hemkunt Builders Pvt. Ltd. (hereinafter called the Objector) entered into an agreement with Punjabi University, Patiala for construction of Holiday Home of Punjabi University, Patiala at Mussorie. The terms and conditions were incorporated in the agreement which also contained an arbitration Clause,being Clause No. 11 in the following terms :Clause 11: “IN case there is any dispute of any nature whatsoever relating to the terms and conditions, interpretation, performance/non-performance of this agreement, or arising there from or touching it in any way, the same shall be referred by any party of this agreement to the sole arbitration of the Vice Chancellor of the PunjabiUniversity, Patiala, or any person nominated by him, for this purpose agreeable to both the parties aad the arbitrator will give award in accordance with the provisions of Arbitration Act, 1940,which will be final and binding on the parties.”

(2) Certain disputes arose between the parties out of the execution of the said agreement. The objector filed a petition under Section 20 of the Indian Arbitration Act being Suit No. 47-A/1985 in this Court for reference of disputes in terms of arbitration agreement. The application was allowed and by order dated 23.1.1985 this Court referred the disputes to the sole arbitration of Vice Chancellor, Punjabi University, in the following words :The disputes inter se M/s. Hemkunt Builders, Punjabi University and Ajit Singh Oberoi are consequently referred to the arbitration of the Vice Chancellor, Punjabi University or his nominee as arbitrator and his award will be binding on the parties.Let an award be delivered within four months of the nomination ofthe arbitrator by the Vice Chancellor or his agreeing to act as suchhimself.”

(3) Mr. S.S. Johl, the then Vice Chancellor of the Punjabi University, Patiala, by his letter dated 23.9.1985 informed the Objector that in view ofthe judgment delivered by Delhi High Court in Suit No. 47-A/1985, the disputes infer se M/s. Hemkunt Builders and Punjabi University had been referred to the arbitration of Vice Chancellor of Punjabi University or hisnominee as arbitrator. It was also mentioned in the letter that he would himself act as arbitrator in the case and the Objector was advised to file the claim within a period of 15 days from the issue of that letter.

(4) In pursuance to the letter, the Objector filed a claim dated28.11.1985 before Shri S.S. Johl, Sole Arbitrator. Thereafter the Objector moved a petition under Sections 5 and 11 of the Arbitration Act for removal of the arbitrator. In the meantime the time for making of the award had since expired, so an application on behalf of Punjabi University, Patiala was also filed in this Court for extension of time under Section 28 of the Arbitration Act, being O.M.P. No. 4/1986. In this O.M.P. the Objector also moved an application for removal of the arbitrator and stay of the arbitrationproceedings. The O.M.P. and the application of the petitioner came up for hearing on 2.5.1986 before this Court, and the following order waspassed: “I.A.1641/86: (Under Section 28 of Arb. Act)Called out second time but none present for the petitioner despite service on petitioner’s Counsel. So, petitioner is proceeded against ex parte in respect of this application an,’, an ex parte order is passed on this application whereby time for making the award by the Arbitrator is extended by four months from today. This order be communicated to the Arbitrator Dr. Bhagat Singh. Vice Chancellor, Punjabi University, Patiala.I.A. 91186: (u/Section 41 Ii Sch. of Arb. Act).Called out second time but none present on behalf of the petitioner. Dismissed in default.”

(5) Thereafter Dr. Bhagat Singh, conducted the arbitration proceedings as an Arbitrator and made his award on 1.9.1986, The arbitrator awarded that a sum of Rs. 1,76,700.00 was payable by the Objector to PunjabiUniversity, Patiala in full and final settlement of all the claims. The counterclaim of the Objector was dismissed except for a payment of Rs. 58.250.00.The Arbitrator filed the award in this Court which was registered as SuitNo. 1930-A/1986. Notice of filing of the award was given to the parties. The award was accepted on behall’ of the Punjabi University, Patiala. But theObjector; being dissatisfied with the award, has filed objections for setting aside the award.

(6) The objections are being contested on behalf of the PunjabiUniversity. On the pleadings of the parties the following issues were framed;

(1)Whether the award is liable to be set aside on the grounds mentioned in the objection petition ?(2) Relief.

(7) The parties were given opportunity to lead their evidence in the form of affidavits and documents. Despite opportunities having been given,the Objector did not file any affidavit by way of evidence. The matter was heard by a learned Single Judge of this Court on 16.1.1989. After hearing the learned Counsel for the parties, the objections were dismissed and the award was made rule of the Court. The observations made by the Court are reproduced below for the sake of convenience : “THE main objection raised to the award is that the petitioner was denied the reasonable opportunity inasmuch as the arbitrator had refused to adjourn the case on the ground of illness of Counsel for the petitioner. After the issues were framed, the objector was granted four weeks time to file evidence in form of affidavits and documents by orders made on 4/02/1988. The affidavit and evidence was not filed and on request of learned Counsel for the objector, further time of two weeks after reopening of the Courts after summer vacations of the year 1988was granted and the case was adjourned to 29th August, 198 8 by orders made on 23/05/1988. The affidavit and the evidence was not again filed and the case was adjourned for arguments to today.The position continues to remain the same. The result is that there is no evidence on record to show that the objector was not granted the reasonable opportunity to put forth its case before the arbitrator.No other objection to the award has been pressed. Accordingly,issue No. 1 is decided in favor of the respondent and against theobjector/petitioner.”

(8) The Objector, being dissatisfied with the order of learned SingleJudge, preferred an appeal before a Division Bench oF this Court. The Division Bench disposed of the appeal by order dated 18.7.1990, in the following terms: “THEmain contention raised in the objections was that the Arbitrator had misconducted the proceedings inasmuch as reasonable opportunity had not been granted by the arbitrator and thereafter an ex-parte award was made.The learned Single Judge by his order dated 16/01/1989has noticed that numerous opportunities were granted to the appellants to file affidavit and documents by way of evidence in support of the objections. The learned Judge further observed that as this opportunity was not availed of, the result was that there was no evidence on record to show that the objector was not granted reasonable opportunity to put forth its case before theArbitrator. This conclusion of the learned Single Judge obviously flows from the fact that no evidence by way of affidavit or otherwise was filed in support of the objections.There is nothing in the order to show that the attention of thelearned Single Judge was drawn to the fact that the Arbitration proceedings were before him. The record of the Arbitrator would itself show whether reasonable opportunity had been granted to theappellants or not. By way of evidence there is little which the objector could have added to what was contained or stated in the record of the arbitration proceedings. In fact, the best evidence with regard to this aspect was the Arbitrator’s record which, admittedly,was available before the learned Single Judge. After examining this record the learned Judge could have come to the conclusion which he has arrived at. namely-that adequate opportunity had beengranted. But as the learned Single Judge has not referred to thisrecord, in our opinion, the order of the learned Single Judge should he set aside and the case remanded to him for a fresh decision in view of the observations made by us hereinabove.”

(9) Now the matter has been heard by me. Mr Dhir appearing for the Objector wanted to raise ;i number of contentions. But Dr. Sidhu appearing for the University objected to it. The contention of Dr. Sidhu is that the only point that was canvassed on behalf of the Objector before the learned Single Judge was that the Objector was denied reasonable opportunity inasmuch as the Arbitrator had refused to adjourn the case on the ground of illness of Counsel For the petitioner and before the Appellate Court also only tins point was canvassed. In view of this, no other point can be allowed to be urged or convassed on behalf of the objector. On the other hand, the contention of Mr. Dhir is that he did not mike any statement before thelearned Single Judge, that no other objection to the award had to be pressed.

(10) Tn support of his contention Dr. Sidhu relied upon a judgment ofthe Supreme Court in the case of Bank of Bihar v. Mahabir Lal and Others.. Tn this case the Supreme Court made thefollowing observations:    "WHERE a statement appears in the judgment of a Court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong or the Court itself admits that the statement is erroneous. The remedy ofn party aggrieved is by way of review."  

Dr. Sidhu's contention is that if the statement attributed to the Counsel by the learned Single Judge was wrong, then Mr. Dhir should have moved .in application before the learned Single Judge for review of the order.   

(11) I have considered the relevant contentions of the parties. In my view the contention raised by Dr. Sidhu has force. The learned Single Judge made an observation that no other point was pressed before him. However.in the interest of justice T am inclined to deal with the other points also which are raised by Mr. Dhir,  

(12) The first point raised by Mr. Dhir is that Dr. Bhagat Singh did not exercise his option to act as an arbitrator in terms of Clause 11 and as such he had no jurisdiction to act as an arbitrator. It was urged thatMr. S.S. Johl had indicated himself to act as an Arbitrator and had conveyed his approval, to act as arbitrator, to the Objector. Dr. Bhagat Singh had not elected to act as an arbitrator or to appoint a nominee to act as an arbitrator in terms of the arbitration Clause. So he had no authority to act as anarbitrator.  

(13) Dr. Sidhu refuted the contention raised by Mr. Dhir. He stated that Dr. Bhagat Singh succeeded Mr. S.S. Johl as Vice Chancellor of the University and the Court appointed him as the arbitrator. He accepted the appointment as an arbitrator and he did signify his intention to act as an arbitrator by a notice sent to the Objector. In support of this contention he relied upon a judgment of the Supreme Court in the case of M/s. P.G. Agencies v. Union of India, Air 1971 Sc 3298. wherein the Supreme Court observed as under:    "THE language of the provision is not that the parties intended to supply the vacancy but on the other hand it is that the parties did not intend to supply the vacancy. In other words if the agreement is silent as regards supplying the vacancy, the law presumes that the parties intended to supply the vacancy. To take the case out of Section 8 what is required is not the intention of the parties to supply the vacancy but their intention not to supply thevacancy."  

His contention is that it was not the intention of the parties that incase one Vice Chancellor resigns the vacancy is not to be supplied.   

(14) The other authority relied upon by Dr. Sidhu is a judgment ofthe Calcutta High Court in the case of Bharat Construction Co. Ltd. v. Union of India, . In this case it was held as under :    "WHEREa Major General is named to be an arbitrator in an arbitration agreement no vacancy would arise within the meaning of Section 8 simply because the particular Major General who was holding the office at the time of the contract ceased to hold that office, if he was succeeded by a successor who was also a Major General. So long as the Major General was succeeded by a MajorGeneral in the particular office and so long as the course of such succession was not broken by the introduction of an officer holding a different rank, no vacancy in the office of the arbitrator would arise at all. A vacancy would arise only when the officer is no longer a person, holding the rank of a Major General."  

(15) I have considered the relevant contentions of the parties and have given my thoughtful consideration to the matter. In my opinion thecontention raised by Mr. Dhir is devoid of force. It appears that during the pendency of O.M.P. 4/1985 Dr. S.S. Johl resigned and in his place Dr.BhagatSingh was appointed as Vice Chancellor of the Punjabi University. Patiala.The Court while extending the time for making the award specifically statedthat the order be communicated to the arbitrator Dr. Bhagat Singh. ViceChancellor, Punjabi University. Patiala. Thereafter Dr. Bhagat Singh. by notice dated 21.5.1986 informed the Objector that he had fixed the hearing in the case, for 8.6.1986 and he was required to appear before him. The notice was in the following terms : “IN accordance with the above orders of the Court, I am to inform you that in my capacity as Arbitrator, I have fixed the next hearing in this case in the office of the Association of IndianUniversities, Aiu House, 16, Kotla Marg, Kotla Road, New Delhi110 002, at 10.30 a.m. on 8/06/1986. You are requested to kindly make it convenient to attend.”

In this notice, he referred to the order passed by this Court on7.5.1986 and thereafter he specifically mentioned that he was issuing thenotice in his capacity as Arbitrator. Under his signatures also he had written Vice Chancellor and Arbitrator. In my opinion it is quite clear that he had exercised his option to act as an arbitrator himself and in that capacity he informed the Objector. In view of this I see no force in the contention raised by Mr. Dhir and this contention is repelled.

(16) The other point that was canvassed by Mr. Dhir is that theArbitrator conducted the proceedings in a hurried manner and no reasonable opportunity was afforded to the Objector to participate in the proceedings and present his case. It was further contended that no peremptory notice was given to the Objector that in case he did not appear before the arbitrator, the arbitrator would proceed ex-parte. The award ex-parte given by theArbitrator is liable to be set aside and quashed.

(17) In support of his contention he relied upon a number of judgments. The first in line is the case of Juggi Lal v. General Fibre Dealers Ltd.: . In this case the Court held as under ; “THE procedural rule applicable to arbitration proceedings is more tolerant than the rule followed in Courts of law. Broadlystated, the principles governing the arbitrator’s right to proceed ex-parte are;If a party to an arbitration agreement fails to appear at one ofthe sittings, the arbitrator cannot or. at least, ought not to. proceed ex-parte against him at that sitting. Where the non-appearance was accidental or casual, the arbitrator ought ordinarily to proceedin the ordinary way, fixing another date of hearing and awaiting the future behavior of the defaulting party.If. on the other hand, it appears that the defaulting party had absented himself with a view to preventing justice or defeating theobject of the reference, the arbitrator should issue a notice that he intends at specified time and place to proceed with the reference and that if the party concerned does not attend he will proceed in his absence. But, if after making such a peremptory appointment and issuing such a notice, the arbitrator does not in fact proceed with ex-parte on the day fixed, but fixes another subsequent date,he cannot proceed ex-parte on such subsequent date, unless he issues a similar notice in respect of that date as well.If he issues a similar notice and the party concerned does notappear, an award made ex-parte, will be in order. But if he does not issue such a notice on the second occasion, but nevertheless proceedsex-parte, the award will be liable to be set aside in spite of a notice of a peremptory hearing having been given in respect of the earlierdate, subject, however, to the condition that prejudice was caused to the party against whom the ex-parte order was made. But this duty to give notice of an intention to proceed ex-parte is not an absolute duty.”

(18) The second judgment on which reliance is placed by Mr. Dhir is the case of Smt.Dulari Devi v. Rajendra Prakash; . In this case the Court observed as under : “IF it appears from the circumstances of the case that aparticular party is determined not to appear before the arbitrators in any event, as when, he has openly repudiated either the reference itself or the particular arbitrators and has shown no desire torecant, the arbitrators are not required to issue a notice of an intention to proceed ex-parte against such recusant person and may proceed ex-parte and make a valid award without issuing a notice.The better course, however, even in such a case is to issue notice and give the party concerned a chance to change his mind. It would also not be absolutely necessary that if one notice had been given that the proceedings would be ex-parte, in the other notice it should be specifically mentioned that the proceedings would be ex-parte also.Whether such an intention should be mentioned or not and what notice would be sufficient may vary in different circumstances indifferent cases.”

(19) The other judgment on which the reliance is placed is the case of Lovely Benefit Chit v. Purandutt-, reported as 1983 Rlr 420. In this case thefollowing observations were made :    "IF one of the parties belong to an out station and has appointed Counsel and latter fails to appear, then intention to proceed ex parte should be notified to the party. If intention toproceed ex parte without notice and also failure to give notice about change of place of sitting are likely to cause prejudice then omission amounts to misconduct of arbitrator."  

(20) Reliance is also placed upon a judgment in the case of Union of India v. D.K. Gupta-, reported in 1978 Rlr 476. In this case the Court ruled as under :    "IF arbitrator shows undue haste in giving award (without waiting for decision of application under Sections 5 and 11) immediately after stay order against award is vacated, then it would bemisconduct. Arbitration proceeds are quasi-judicial and arbitrators must at in a judicial manner to avoid blemish on their conduct.An arbitration agreement cannot be superceded on the ground of delay in proceedings. Such an agreement, like any other agreement, can be avoided only if it is tainted with fraud, coercion,undue influence or its terms are unconscionable. If an agreement does not prohibit supply of vacancy of an arbitrator then it cannot be superceded, simply on setting aside of the award".  

(21) Reference is also made to a passage from 'Russel on Arbitration'19th Edition, page 273, wherein it was observed, "If, though there has been some needless delay, an arbitrator does not give the party who. has caused it proper opportunity to go into his case, but makes his award too hastily,without giving due notice of his intention to do so, the Court will set theaward aside".  

(22) On the other hand the contention of Dr. Sidhu is that thearbitrator afforded reasonable opportunity to the Objector to attend thearbitration proceedings but despite that he opted to remain absent. Thearbitrator was justified in taking ex parte proceedings against the Objector and making his award. The arbitrator did not act in undue haste and afforded proper and reasonable opportunity to the Objector to present hiscase. Despite that the Objector avoided to appear before the arbitrator and the arbitrator was justified in making the ex parte award.  

(23) In order to appreciate the relevant contentions of the parties it is necessary to give a brief resume of the facts which are necessary for deciding the controversy.  

(24) By notice dated 21.5.1986 Dr. Bhagat Singh fixed the hearing ofthe case for 8.6.1986 at 10 p.m. in the office of Association of IndianUniversities, 16, Kotla Marg, Kotla Road. New Delhi. The objector was informed about the date of hearing. The arbitrator also informed theobjector by means of telegram. By telegram dated 6.6.1986 the objector informed the arbitrator that I .e had not exercised his option to act as anarbitrator under '..he Arbitration Clause and he had not succeeded Dr.S.S. Johl. The proceedings taken by him would be illegal and asked thearbitrator to cancel the date 8.6.1986 at Delhi. The arbitrator telegraphically informed the Objector that the arbitration proceedings would be held on 8.6.1986 as scheduled. The objector also sent a registered letter to thearbitrator informing him that he had not elected to act as an arbitrator or appoint a nominee to act as an arbitrator in terms of Clause 1 1. As such he had no locus standi to act as an arbitrator or consider himself to be anarbitrator. It was further stated in the letter that he had no jurisdiction to call the objector to appear before him. The arbitrator was warned that in spite of the contention raised on behalf of the objector if he proceeded with the case on 8.6.1986 the same would he without jurisdiction and would be challenged by him. The arbitrator conducted the proceedings on 8.6.1986,but none appeared before him on behalf of the Objector. Despite the request made on behalf of flu- Counsel for Punjabi University to proceed ex-parte against the Objector, the arbitrator adjourned the proceedings to24.6.1986. The Objector was duly informed about the proceedings conducted on 8.6.1986 and the next date of hearing i.e. 24.6.1986. On 24.6.1986,Mr. Ajit Singh Oberoi appeared on behalf of the Objector and presented an application before the Arbitrator inter aha standing that he could not act as arbitrator till such time he acted under Clause 11 of the agreement and appointed himself to act as an arbitrator or to nominate any other person to act as an arbitrator. This contention was repudiated on behalf of the Counselfor the University and after hearing the Objector as well as the Counsel forthe University the application of the Objector was dismissed. He directed the Objector to produce evidence in support of their claim. The Objector stated before the Arbitrator that his Counsel Mr. Dhir was unwell and admitted in a Nursing Home and as such he was unable to proceed with the evidence in the absence of his Counsel. Request was made that another date may be given for that purpose. It was stated by the Objector that his Counsel would not he available for another month on medical grounds and prayed that the date be given in the last week of July, 1986, and that the next proceedings be held at Mussorie. The arbitrator acceded to the request of the Objector and adjourned the proceedings to 26.7.1986. It was recorded in the proceedings dated 24.6.1986 that no separate notice would be sent.In the meanwhile, by letter dated 8.7.1986 Mr. Dhir informed the arbitrator that after he was inducted as a Vice Chancellor he could not suo motu act as an arbitrator unless he had elected as such in terms of arbitration Clause and obtained consent of the parties to his appointment. He further informed the arbitrator that he had been operated upon for detached retina and he had been advised 8-10 weeks rest by his Eye Surgeon. He would notbe in a position to move out of home and would be unable to attend the proceedings on 26.9.1986 at Mussorie. By letter dated 15.7.1986 the Arbitrator informed Mr. Dhir that the hearing in the case for 26.7.1986 was fixed with the consent of the objector after a gap of one month on specific request of the Objector. The hearing would take place at Mussorie on26.7.1986 as scheduled and there would be no postponement of the hearing.It was further clarified that the Objector should be present on that date otherwise ex parte proceedings would be taken on that date. On 24.7.1986the Objector also sent a telegram to the Arbitrator informing him that inview of the letter written by his Counsel it would not be convenient nor suitable to attend the proceedings on 26.7.1992 as the Counsel had been advised rest for 2 months. The result is that none appeared on behalf ofthe Objector before the Arbitrator on 26-7-1986. The Counsel for theUniversity pressed the arbitrator to take ex parte proceedings against theObjector. However, in the interest of justice and fair-play the arbitrator decided to given another opportunity to the Objector to present their case atthe next hearing which was fixed for 10.8. 1986 in the office of the ViceChancellor, Punjabi University, Patiala. The arbitrator by his letter dated29.7.1986 sent a copy of the proceedings sheet dated 26.7.1986 and informed the Objector about the next date of hearing i.e. 10.8.1986 at Patiala. It was stated in the notice that in no case the hearing would be postponed as hehad to submit his report in the case before 2/09/1986 in terms ofthe order passed by Justice Jagdish Chandra, and also because he would be leaving for abroad on August 16-17 in connection with the Conference of Executive Heads of Universities of Commonwealth countries. In case of default in appearance, the arbitrator would be taking up proceedings ex-parte and would make the order accordingly. The letter was sent by registered A.D. post. However, it was received back with the report "intentionally avoiding to take delivery." Again none appeared before theArbitrator on behalf of the Objector on 10.8.1986. Ex-parte proceedings were taken in the case against the Objector and the case was heard by thelearned arbitrator ex parte. He further adjourned the case to 29.8.1986 in the office of Vice Chancellor, Punjabi University. Patiala, for arguments. I have perused the proceedings dated 10.8.1986. The penultimate para of theproceedings dated 10.8.1986 reads as under :    "I fix the date for next hearing on 29.81986 at 3.00 p.m. in the office of the Vice Chancellor. Punjabi University. Patiala for arguments. This will be the last meeting of the Arbitration case as have to submit the arbitration findings within the stipulated periodi.e. by 2.9.1986. Conies of these proceedings will be sent to theparties under registered post".  

By letter dated 12.8.1986 the arbitrator informed the Objector that the next bearing would be conducted in the office of the Vice Chancellor, PunjabiUniversity, Patiala, on 29.8.1986 at 3 p.m. and arguments of both the sides would be heard on that date. The parties may, if so desired, submit the written arguments also in the meeting. This letter was sent by registeredA.D. post. Along with this letter a copy of the proceedings dated 10.8.1986was also sent, which clearly indicated that on 29.8.1986 there would be the last meeting, it was received back undelivered with the report “this office is found always locked and the addressee is not available”. On 29.8.1986 also nobody appeared on behalf of the Objector. The arbitrator heard the arguments on behalf of the Punjabi University and fixed for pronouncement ofthe award on 1.9.1986. The Arbitrator informed the Objector by telegram dated 29.8 1986. On 1.9.1986 also none appeared on behalf of the Objector before the Arbitrator and the arbitrator announced the award on thatdate.

(25) The contention of Mr. Dhir is that the arbitrator conducted theproceedings in a hurried manner and no reasonable opportunity was afforded to the Objector. Despite the fact that the Counsel for the Objector was ill,the arbitrator did not adjourn the proceedings. Even no peremptory noticewas given by the arbitrator that in ease the Objector would not attend theproceedings ex parte decision would be taken. The contentions raised byMr. Dhir are refuted by Dr. Sidhu.

(26) I have given my thoughtful consideration to the entire matter and gone through the judgments relied upon by the Counsel, for the parties very carefully. To my mind the contention of Mr. Dhir is not well founded.The arbitrator conducted the proceedings on 8.6.1986, 24.6.1986, 10.8.1986.29.8.1986 and 1.9.1986. Except on 24.6.1986 nobody appeared on behalf ofthe Objector before the Arbitrator. The consistent stand which was taken bythe Objector was that the Arbitrator had not exercised his option to act as anarbitrator under Clause 11 of the Arbitration agreement and as such he had no jurisdiction to proceed with the matter. He moved such application before the arbitrator on 24.6.1986 which was dismissed by the arbitrator. On therequest of the Objector the case was adjourned to 26.7.1986 at Mussorie. Onemonths’ time was given to the Objector to make arrangement for presenting his case at Mussorie. Thereafter the Objector, for reasons best known to him absented himself and did not appear before the Arbitrator. Mr. Dhir did write a letter to the arbitrator informing him that he had undergone an eye-operation and had been advised rest for 2 months. In my view the Objector should have appeared before the Arbitrator himself and should have made a personal request for adjournment of the case. If Mr. Dhir was not available, the Objector should have made some alternative arrangement or theObjector should have atleast appeared before the arbitrator and made a request that his Counsel was unwell and that he would agree to the extension of time fixed by the Court without prejudice to his contentions, for making the award and the proceedings be adjourned so as to enable him to procure the assistance of his Counsel. If he had appeared before the arbitrator under protest and such a request had been made before the Arbitrator, the arbitrator might have considered it and adjourned the proceedings. But theObjector throughout had been questioning the authority of the arbitrator to conduct the arbitration proceedings. The conduct of the Objector clearly indicated that he had no intention to participate in the arbitration proceedings, Despite this the arbitrator acted fairly and afforded reasonableopportunity to the Objector to present his case. The proceedings were adjourned a number of times to give a chance to the Objector to appear before him. But the Objector did not even when the courtesy to go beforethe Arbitrator and make a personal request for adjournment, in my opinion,under the circumstances, the arbitrator was justified an proceeding ex part against the Objector.

(27) The other contention raised by Mr. Dhir that no peremptory notice was given is also devoid of force. In all the notices it was specifically mentioned that if the Objector failed to appear before the Arbitrator, theArbitrator would proceed ex parte. No doubt in the notice dated11/12.8.1986 it was not specifically mentioned that in case of non-appearance ex-parte proceedings would be taken. However, the copy of the proceedings dated 10.8.1986 clearly indicated that on 29.8.1986 there would be the lastmeeting. But taking into consideration the facts, and circumstances of thiscase, I am of the considered opinion that the conduct of the Objector did not justify peremptory notice for the hearing dated 29.8.1986. It appears from the circumstances of the case that the Objector was determined not to appearbefore the Arbitrator in any event. He had been openly repudiating the authority of the arbitrator to proceed with the arbitration. He had shown no desire to recant. The arbitrator is not required to issue notice of intention to proceed ex parte against such recusant person and may proceed ex-parte and make a valid award without issuing such notice. If a party had no intention to appear before the Arbitrator, he cannot be allowed/permitted to urge that the arbitrator did not give a peremptory notice. This contention of Mr.Dhir is also repelled.

(28) For the reasons stated above I do not find any force in the Objections hide by the Objector and the same are dismissed. The award is made a Rule of the Court and decree is passed accordingly. However, inthe circumstances of the case, I would leave the parties to bear their owncosts.