JUDGMENT
R.L. Anand, J.
1. This is a civil revision which has been directed against the order dated 4.10.1995 passed by the Court of Sub Judge Ist Class, Patiala, who allowed the application Under Section 5 read with Section 11 of the Arbitration Act, 1940 (for short ‘the Act’) filed by Surinder Singh, Contractor, and removed the nominated Arbitrator and appointed Shri Kanwar Jaswant Rai, Superintendent Engineer, Public Health Circle, Patiala, as a new Arbitrator for deciding the matter in dispute between the parties within the stipulated period of four months from the date of entering into the reference.
2. Brief facts of the case are that work of providing a Sewerage Scheme, Nabha (LIC 3rd Package) laying of SW Pipe, Sewerage Construction of Manhole chamber and all other works contingent thereto was allotted by the Executive Engineer Water Supply & Sewerage Division, Patiala, vide letter No. 10721 dated 3.12.1985 as per tender approved by the petitioner-Superintending Engineer, Punjab Water Supply and Sewerage Board, Patiala (respondent No. 2 before the trial Court). The costs of the work allotted was Rs. 4,50,000/-. Said work was completed on 19.5.1987 and finalised on 27.8.1987 by the Executive Engineer. According to Clause 25-A of the Agreement, Superintending Engineer (petitioner herein) was to act as an Arbitrator and any dispute arisen was to be referred to him for arbitration within the prescribed period. The Arbitration was applied on 14.1.1988 and detail of the claim was submitted to the Arbitrator on 22.2.1988 within the period of limitation. The Arbitrator failed to make the award within four months. The time limit of four months expired on 21.6.1988. The contractor (respondent No. 1 herein) did not expect any justice from the Arbitrator in view of the facts mentioned in the application Under Section 5 read with Section 11 of the Act and it was prayed by him that the nominated Arbitrator be removed and a new Arbitrator be appointed Under Section 9 of the said Act.
3. Notice of the application was given to the petitioner (Superintending Engineer) and it was pleaded that the construction work was completed on 31.7.1987 and not on 19.5.1987. It is admitted that payment was received by the Contractor Shri Surinder Singh on 27.8.1987. The Contractor did not lodge any claim before the Arbitrator within the prescribed period of limitation. The Contractor lodged his claim before the Arbitrator for the first time on 23.2.1988 and not on 14.1.1988. The claim was lodged beyond the period of limitation and hence it was rejected. It was denied that the Arbitrator did not make the award within limitation or as per Section 3 of the Act. It has also been denied that the Arbitrator has not decided that claim or that he has not taken any action in the claim of the Contractor. Since no claim was pending, therefore, the question of doing injustice to the Contractor did not arise. With the above defence the Superintending Engineer (petitioner herein) prayed for the dismissal of the application filed by the Contractor.
4. The Contractor-applicant filed a rejoinder to the written statement in which reiterated the allegations made in the application and denied those of the written statement and on the pleadings of the parties, the learned trial court framed the following issues:-
1. Whether the Arbitrator is liable to be changed in the case and a fresh Arbitrator is to be appointed ? OPP.
2. Whether the Arbitrator has already made the award and this application is not maintainable ? OPR.
3. Relief.
The parties led oral and documentary evidence in support of their case and on conclusion of the proceedings it was held in paras Nos. 9 and 10 of the impugned order that the appointed Arbitrator was liable to be removed. The said paras are reproduced for consideration as follows:-
“9. Thus from the evidence on the file, it is clear that there was an agreement between the parties Ex. R1 to the effect that if any dispute arose between the parties, the matter should be referred to the Arbitrator. Under this agreement, final bill of the contract, was passed and there was a dispute and then the matter can be referred by the contractor to the Arbitrator within the period of 180 days or six months. In this case, final bill was passed on 27.8.1987 and detail of claim Ex. PX was submitted on 22.2.88. From the evidence on the file, it is also evident that the Arbitrator did not pronounce any award even he has not entertained the reference of the applicant, and no award was given in this case by the Arbitrator. The Arbitrator has not announced the award within four months as per agreement and he has also not entertained the reference. The application for production of documents was rejected vide Ex. P3 without any notice to the applicant. Learned counsel for the petitioner has relied upon an authority in case titled as Kalicharan Sharma v. State of U.P., AIR 1985 Delhi page 389, in which it has been held that the delay of two years on the part of the Arbitrator to enter upon the reference is palpably and obviously a gross neglect in that regard and he has failed to issue all reasonable despatch in entering upon and proceedings with the Arbitration proceeding and thereby he is liable to be removed as Arbitrator Under Section 11(1) of the Arbitration Act, 1940.
10. Thus from the above discussion, I am of the considered view that the Arbitrator has failed to conduct the proceedings of the Arbitrator and to give award and he is liable to be removed and a new Arbitrator is required to be appointed to decide the matter in dispute. This issue is accordingly decided in favour of petitioner and against the respondents.”
Finally it was ordered by the trial Court that Shri Kanwar Jaswant Rai, S.E., Public Health Circle, Patiala be appointed as Arbitrator in this matter and he was directed to give the award within the stipulated period. Aggrieved by the order of the trial court the present revision petition has been filed by the Superintending Engineer, which is being disposed of after hearing Shri J.S. Sathi, Advocate, appearing on behalf of the petitioner and Shri Sanjiv Gupta, Advocate, appearing on behalf of the respondents, with whose assistance I have been able to go through the award of the case.
5. During the course of arguments, learned counsel for the petitioner made only one prayer that his client has no objection to the appointment of a fresh Arbitrator in place of Shri Kanwar Jaswant Rai, who is already inimical with the petitioner and the petitioner has no faith in the Arbitrator appointed by the trial Court. This offer made by the petitioner is acceptable to the learned counsel appearing on behalf of the respondent-Shri Surinder Singh, Contractor, who proposed the name of Shri P.S. Mangat, Superintending Engineer, Public Health Circle, Sangrur, and the counter proposal made by the learned counsel for the respondent is acceptable to the learned counsel for the petitioner.
6. In this view of the matter, while affirming the impugned order dated 4.10.1995 passed by the trial court, I appoint Shri P.S. Mangat, Superintending Engineer, Public health Circle, Sangrur, in place of Kanwar Jaswant Rai, Superintending Engineer, Public Health Circle, Patiala and the new Arbitrator now shall decide the matter in dispute within the stipulated period of four months from the date of entering into the reference. In case the Arbitrator is not in a position to give the award within the stipulated period of four months, he may apply to the court for the extension of the time according to law.
With the above directions and observations the revision petition stands disposed of.