TMI Blog2014 (8) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically provide for any particular qualification(s) of an arbitrator the same would not denude the power of the Court acting Under Section 11(6), in an appropriate case to depart therefrom. A period of nearly two decades has elapsed since the contractor had raised his claims for alleged wrongful termination of the two contracts. The situation is distressing and to say the least disturbing. The power of the Court under the Act has to be exercised to effectuate the remedy provided thereunder and to facilitate the mechanism contemplated therein. In a situation where the procedure and process under the Act has been rendered futile, the power of the Court to depart from the agreed terms of appointment of arbitrators must be acknowledged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Though a panel of arbitrators as per Clauses 64(3)(a)(ii) and (iii) of the General Conditions of Contract was appointed as far back as in the year 1996, till date the award(s) in respect of the disputes arising out of either of the two contracts is yet to be passed. According to the Appellant-railways, the proceedings of arbitration has been completed in respect of the disputes arising out of Contract No. CAO/CON/722 dated 01.11.1993. Even if the said statement of the Appellant-railways is to be accepted, though no material has been laid in support thereof, what cannot be denied is the fact that till date the award is yet to be passed. Admittedly, the arbitration in respect of the contract No. CAO/CON/738 dated 28.04.1994 has not even co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record; not to speak about the award of the arbitrators though such an award would have been the natural consequence of the completion of arbitration proceedings. It is in the totality of these facts that the High Court had thought it proper to travel beyond the framework of Clauses 64(3)(a)(ii) and (iii) of the General Conditions of Contract and appoint a retired Chief Justice as the arbitrator. 4. The correctness of the said decision necessarily has to be judged in the light of the facts and circumstances enumerated above. The necessary legal discourse that would be required to be gone into to answer the question as posed above could begin by extracting the provisions of Clauses 64(3)(a)(ii) and (iii) of the General Conditions of Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/their place in the same manner in which the earlier arbitrator/arbitrators had been appointed. Such re-constituted Tribunal may, at its discretion, proceed with the reference from the stage at which it was left by the previous arbitrator(s). From the provisions of the General Conditions of Contract it is clear that the panel of arbitrators as per the agreement between the parties necessarily has to be Gazetted Railway Officers; any vacancy in the panel of arbitrators has to be filled up in the same manner in which the initial panel is required to be constituted. 5. The classical notion that the High Court while exercising its power Under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter for short 'the Act&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read alongwith the requirement of Sub-section (8) of Section 11 of the Act. The position was further clarified in Indian Oil Corporation Limited and Ors. v. Raja Transport Private Limited (2009) 8 SCC 520. Paragraph 48 of the report wherein the scope of Section 11 of the Act was summarized may be quoted by reproducing Sub-paragraphs (vi) and (vii) herein below. (vi) The Chief Justice or his designate while exercising power Under Sub-section (6) of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause (vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in any event, had been held in Northern Railway Administration (supra) not to be mandatory, but only embodying a requirement of keeping the same in view at the time of exercise of jurisdiction Under Section 11(6) of the Act. 8. In the present case Clauses 64(3)(a)(ii) and (iii) of the General Conditions of Contract do not prescribe any specific qualification of the arbitrators that are to be appointed under the agreement except that they should be railway officers. As already noticed, even if the arbitration agreement was to specifically provide for any particular qualification(s) of an arbitrator the same would not denude the power of the Court acting Under Section 11(6), in an appropriate case to depart therefrom. In Singh Builders S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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