TMI Blog2006 (9) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... a Dalveer Bhandari, JJ. JUDGMENT S.B. SINHA, J : Leave granted. The parties herein entered into a contract pursuant to a notice inviting tender by Appellant No. 1 for the work of construction of 9 Nos. Type-V quarters at Jayadev Vihar, Bhubaneshwar. The said contract contained an arbitration clause in terms whereof the Chief Engineer, Telecommunication/ Postal Department in charge of the work at the time of dispute or if there be no Chief Engineer the administrative head of the said Telecommunication/ Postal Department was to be appointed as an arbitrator. The said provision envisaged that in terms thereof no person other than the one appointed by such Chief Engineer or administrative head of the Telecommunication/ Postal as aforesaid should act as arbitrator. A notice in terms of arbitration agreement contained in clause 25 of the contract was issued by the Respondents on 7.1.2002. A letter appointing one Shri Gurbax Singh, Principal Chief Engineer (Arb.), New Delhi as the sole arbitrator was said to have been drafted on 4.2.2002. It, however, was dispatched on 7.02.2002. On the same day, having regard to the fact that allegedly the Managing Director of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , had escaped notice/ audibility of the opp. Party counsel. 3. That then the counsel for the opposite party promptly rushed to the court and with due permission of your Lordship, apprised about such dictation with a rest for omission of the "No Objection" portion which occurred due to some communication lapses. And Your Lordship was considerable and gracious enough to ask the Stenographer on duty at that time to take down the sought for change after confirming from me whether it was about Mr. Bhattacharya of KOLKATA." The prayer made in the said application reads as under: "Under the circumstances stated above, the opposite party, therefore, earnestly pray that your Lordship may graciously be pleased in the ends of justice to direct appropriately for proper reflection of your Lordship s subsequent instruction in the order." By an order dated 3rd March, 2006, the High Court refused to recall its order dated 20th January, 2006 stating: "Now, learned counsel for opposite parties appears and submits that the aforesaid recording that he had no objection against the appointment of Shri B.C. Bhattacharya is not correct and in fact he had objection. He wan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means for securing the appointment. (7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final. (8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to- (a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator..." Evidently, the Managing Director of the Appellant was served with a notice on 7th January, 2002. The letter appointing the arbitrator was communicated to Respondent on 7th February, 2002. By that time, 30-days period contemplated under the Act lapsed. The Managing Director of the Appellant was required to communicate his decision in terms of Clause 25 of the contract. What would be the meaning of the term communicate came up for consideration before this Court in State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313], wherein it was held: " It is plain that the mere passing of an order of dismissal would not be effective unless it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the arbitration agreement or any Rules of any Institution under which the disputes were referred to arbitration. There was no failure on the part of the concerned party as per the arbitration agreement, to fulfil his obligation in terms of Section 11 of the Act so as to attract the jurisdiction of the Chief Justice under Section 11(6) of the Act for appointing a substitute arbitrator. Obviously, Section 11(6) of the Act has application only when a party or the concerned person had failed to act in terms of the arbitration agreement. When Section 15(2) says that a substitute arbitrator can be appointed according to the rules that were applicable for the appointment of the arbitrator originally, it is not confined to an appointment under any statutory rule or rule framed under the Act or under the Scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage. We are not in a position to agree with the contrary view taken by some of the High Courts." But, herein the issue is entirely different. Apart from failure on the part of the Managin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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