JUDGMENT
Anwar Ahmad, J.
1. These two appeals by the State of Bihar arise out of Miscellaneous Cases 84 of 1965 and 19 of 1966 of the Court of the Subordinate Judge, Hazaribagh, and are directed against the same order of the learned Subordinate Judge. They have been heard together and will be governed by this common judgment.
2. The facts of the two cases are common and are as follows. Respondent S. K. Sahay was given a contract for the construction of the cattle farm building at Gauriakarma in the district of Hazaribagh. An agreement to this effect was entered into by the Executive Engineer representing the appellant with the respondent namely, agreement No. 2F2 form of 59-60 (Ex. 3). In pursuance of this agreement, the respondent received the work order on the 20th August 1959.
In the month of January, 1960, when the work had only been completed in part, the respondent was directed to stop further construction. On the 4th May, 1960, the respondent was further informed by the Executive Engineer that the agreement was terminated. On the 19th March 1964, the respondent filed an application for the enforcement of Clause 23 of the agreement which provided that, in case any dispute or difference arose between the parties, the same would be referred to the Superintending Engineer of the circle and his decision would be final and binding upon the parties. On the 9th November, 1964, the Chief Engineer directed the Superintending Engineer of the circle to arbitrate in the matter.
It appears from the order-sheet of the arbitrator that he entered upon the reference some time prior to the 14th July, 1965. On this date, evidently in response to the notice issued to the parties, they appeared before the arbitrator. The respondent again appeared before him on the 5th July, and the 2nd September, 1965 and the case was heard in part. On the 1st November, 1965, the respondent filed an application before the Court below for the removal of the arbitrator on the ground that he was apprehensive that he would not get justice and fairplay at the hands of the arbitrator, namely, the Superintending Engineer of the circle. This application gave rise to Miscellaneous Case No. 84 of 1965 of the Court below out of which Miscellaneous Appeal No. 374 of 1967 of this Court arises.
3. It appears from the order sheet of the arbitrator dated the 12th November, 1965 that the respondent attended his office on the 2nd November, 1965. It is also stated therein that nobody appeared before him on that date to represent the appellant. The case was adjourned to the 10th December, 1965. The respondent did not present himself before the arbitrator on this date. The award of the arbitrator is dated the 2nd February, 1966. On the 1st March, 1966, another application was filed by the respondent praying to set aside the award as the same was null and void and was given beyond the period of four months of the arbitrator entering upon the reference. This application was numbered as Miscellaneous Case 19 of 1966 of the Court below out of which Miscellaneous Appeal No. 373 of this Court arises.
4. The only point raised before the learned Subordinate Judge was whether the award dated the 2nd February, 1966 was null and void. The learned Subordinate Judge, relying on the decision of their Lordships of the Supreme Court in Hari Shankar Lal v. Shambhu Nath, AIR 1962 SC 78 has come to the conclusion that, as the award was given after the expiry of four months from the date on which the arbitrator entered upon the reference, it must be held to be null and void and without jurisdiction.
5. Mr. Sarwar Ali (Government Pleader No. 1) on behalf of the appellant has submitted that, in the instant case, the respondent had been taking part in the proceeding before the arbitrator and, as such, he is
estopped from challenging the award as being illegal on the ground that it was given after the period of four months from the date on which the arbitrator entered upon the reference. Learned Counsel, in support of his submission, has drawn our attention to the recent Full Bench decision of this Court in Bokaro and Ramgur Ltd. v. Dr. Prasun Kumar Banerjee, AIR 1968 Pat 150 (FB). In that case, their Lordships distinguished the Supreme Court decision in Hari Shankar Lal’s case, AIR 1962 SC 78 on the ground–
“The point which falls for our decision in this case as to what would be the effect of a party taking part in the proceeding before the arbitrator after the expiry of four months did neither fall for decision in the Supreme Court nor was it canvassed or decided.”
On the submission of learned counsel, so far as the present case was concerned, the respondent, having appeared before the arbitrator, was estopped from challenging the award on the ground that it was barred by time.
In the Full Bench decision of the Court referred to above, their Lordships considered as to how far the principles of waiver and acquiescence applied against the party who had appeared in the proceeding before the arbitrator and it was laid down therein that, if a party took a willing part in the deliberations before the arbitrator after the expiry of four months without any objection, protest or the like, it was estopped from challenging the validity of the award on the ground of its having been made after the expiry of the period or, in the alternative, it waived the right to put a stop to the proceeding going ahead on the expiry of that period. On the contrary, its conduct amounted to acquiescence.
6. Mr. Ramakant Varma, learned counsel for the respondent, very rightly has not challenged the principles laid down in the Full Bench decision. His contention, however, is that, so far as the instant case is concerned, there is no evidence on record that the respondent participated in the proceeding before the arbitrator after the expiry of four months from the date on which the arbitrator entered upon the reference. It has already been stated that the arbitrator entered upon the reference some time prior to the 14th July 1965 and, on the 1st November 1965, the respondent filed an application before the Court below for the removal of the arbitrator. According to Mr. Sarwar Ali, although the respondent had objected to the arbitration by the Superintending Engineer, he attended his office on the very next day, that is to say, on the 2nd November, 1965, and participated in the proceeding. He was, therefore, estopped from challenging the validity of the award on the ground that it was given beyond four months.
In support of his submission, learned counsel has relied on the order sheet of the arbitrator dated the 12th November, 1965, wherein it has been stated that the respondent attended the office of the arbitrator on the 2nd November, 1965. This order-sheet was written ten days, later, namely, on the 12th November, 1965. It further appears from this order-sheet that no one appeared for the appellant on that date. It is, therefore, clear that, on the 2nd November, 1965, no steps were taken either by the arbitrator or the parties in the arbitration proceeding and, as such, it cannot be held that the respondent took “a willing part” in the deliberations before the arbitrator. The presence of the respondent in the office of the arbitrator cannot amount to his taking part in the proceeding. This being the position, it cannot be held that the respondent is estopped from challenging the award on the ground of his taking part in the proceeding after the expiry of four months or that he acquiesced in it.
7. It has been next submitted by learned counsel for the appellant that the learned Subordinate Judge has wrongly allowed Miscellaneous Case No. 84 of 1965 which arose out of the application filed by the respondent on the 1st November, 1965 for the removal of the arbitrator. The submission of the learned counsel has to be accepted. The learned Subordinate Judge having set aside the award in Miscellaneous Case No. 19 of 1966, the application filed on the 1st November, 1965 by the respondent for the removal of the arbitrator did not really arise for consideration. The award itself having been set aside, the application for the removal of the arbitrator had become infructuous.
8. The result, therefore, is that Miscellaneous Appeal No. 373 of 1967 is dismissed and Miscellaneous Appeal No. 374 of 1967 succeeds on the technical ground that the application filed in Miscellaneous Case No. 84 of 1965 had become infructuous. There will be no order as to costs. The stay order passed by this Court on the 22nd July, 1968 in both the appeals consequentially stands vacated.
Bahadur, J.
9. I agree.