JUDGMENT
Jagdish Chandra, J.
(1) Respondent No. 2 Balbir Singh had been appointed as the arbitrator to resolve the disputes and differences between the parties Vide order dated 26.11.1985 passed by this Court. The petition moved under S. 20 of the Arbitration Act, 1940 (in short the Act) by the petitioner was accepted and disputes and differences between the parties were ordered to be referred to the sole arbitration of Shri Balbir Singh for decision and parties were directed to appear before him on 8.12.85 at 10.00 A.M. at his residence. By means of the present petition moved under S. 8 of the Act the petitioner prays for the quashing of the appointment of Sh. Balbir Singh as arbitrator and for a direction that Shri Ashok Nijhawan be appointed to act as sole arbitrator for resolving the disputes and differences between the parties
(2) Respondent No. 1 has been proceeded against ex parte in the case as it did not put up appearance in Court despite substituted service by publication of notice in the English daily ‘Statesman’.
(3) It was directed that/ex, parte evidence be produced in the form of affidavits’ One Affidavit deposed to by the petitioner herself has been filed by way of ex parte evidence.
(4) According to the admitted facts as stated in the petition and also in the affidavit filed by the petitioner by way of ex parte evidence when the disputes and differences between the parties were referred to the sole arbitration of Shri Balbir Singh vide order dated 26.11.1985 of this Court passed on the petition under S. 20 of the Act of the petitioner, the petitioner went to the said arbitrator along with her counsel on 8.12.1985, the date fixed in the aforesaid order passed on the petition under S. 20 of the Act the arbitrator told them that he had no knowledge of the arbitration proceedings or of the letter dated 10.5.1984 of respondent no. 1 appointing him as the arbitrator but the petitioner received a notice dated 18.12.198 5 from the said arbitrator directing the petitioner to appear before him on 10.2.1986 at 10.00 A.M. The petitioner’s counsel wrote a letter dated 20.12.85 wherein the arbitrator was requested to fix an early date, i.e. within 10 days of the receipt of the said letter but there was no response from the arbitrator whereupon the petitioner filed application under Ss. 8 and 13 of the Act praying for the removal of Shri Balbir Singh as arbitrator and for the appointment of an independent arbitrator. That petition was, however, dismissed by this Court vide order dated 13.5.1986. It is now asserted by the petitioner that the said 212 arbitrator, though had been directed vide order dated 26.11.85 by this Court to conclude the arbitration within 4 months reckoned from 26.1.1985, the arbitrator had not even issued notices to the parties asking them to file the claims before him and had neglected to act in the matter of arbitration within the stipulated period of four months. It is further alleged that a notice dated 26.11.1986 was sent by the petitioner to respondent no. 1 that notwithstanding the order of the Court, no award had been made and that the arbitrator Shri Balbir Singh had neglected to act as such.
(5) The affidavit deposed to by the petitioner and filed by way ex parte, evidence in this case supports the above mentioned averments of the petitioner. Now, the question which calls for determination is whether there is any material warranting the removal of the sole arbitrator Shri Balbir Singh to act as arbitrator. The learned counsel for the petitioner submits that he does not seek the removal of the arbitrator but simply asserts that he has completely neglected to start the arbitration proceedings. The question even then remains the same whether the arbitrator has neglected to perform his duty as arbitrator in the matter of starting the arbitration proceedings and if it is so held, he would be liable to be removed as arbitrator and the vacancy which would arise would have to be filled up by appointing some other arbitrator. The neglect the part of arbitrator in the matter of arbitration proceedings, as alleged in the petition by the petitioner, is the one prior to the making of the petition by the petitioner for the removal of the arbitrator which was dismissed by this Court vide order dated 13.5.1986. That neglect, if at all came, to an end having been adjudicated in the order dated 13.5.1986 when the earlier petition for the removal of the arbitrator was dismissed by this Court. The neglect alleged thereafter has not been specified in this petition nor in the affidavit of the-petitioner and the only fact alleged is that a notice dated 26.11.1986 was sent by the petitioner to respondent no. 1 staling that despite order of the Court no award has been made and that the arbitrator had neglected to act within the stipulated time. It is nowhere stated in this application nor in the affidavit filed by way of ex parte evidence that after the dismissal of the petition on 13.5.1986 by the Court by means of which the removal of the arbitrator was sought on the ground of his negligence/refusal, the arbitrator was notified by the petitioner or by the Court or by respondent no. 1 that the petition for his removal to act as arbitrator had been dismissed by the Court and in the absence of such an averment in the pleadings or in the affidavit, no blame can be put upon the arbitrator who cannot be fixed with the knowledge that the petition for his removal had been dismissed on 13.5,1986 where after he could start the arbitration proceedings. The aforesaid omission is fatal to this petition which is dismissed.
(6) The sole arbitrator Shri Balbir Singh be now intimated about the aforesaid order of the dismissal of this application for his removal and he be directed to go ahead with the arbitration proceedings to resolve the disputes and differences between the parties. Even a dusty copy of the operative part of this order be given to the petitioner or his counsel for being taken to the arbitrator Shri Balbir Singh to enable him to start the arbitrator proceedings immediately. The petitioner shall also appear before the arbitrator Shri Balbir Singh on 30.11.1987. The arbitrator shall conclude the arbitration proceedings and pronounce his award within 4 months to be reckoned from 30.11.1987.