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CASE NO.: Appeal (civil) 7063-7065 2000

PETITIONER: M/S.NATIONAL HEAVY ENGINEERING COOPERATIVE LTD.

       Vs.

RESPONDENT: M/S.KING BUILDERS

DATE OF JUDGMENT:       04/12/2000

BENCH: D.P.Mohapatro, Shivaraj Patil

JUDGMENT:

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     J U D G M E N T

     D.P.MOHAPATRA, J.

     Leave  granted.   All these appeals  are  inter-linked with  each  other.   The  parties are the  same  and  common questions arising from the same set of facts are involved in all  these cases which were disposed of by the High Court of Rajasthan   by   a   common   judgment.    While   SLP   (C) Nos.10917-10918  of  1999 are directed against the  judgment passed by the High Court in Miscellaneous Appeal

     Nos.283 of 1992 and 825 of 1994 filed under Section 39 of  the Arbitration Act, 1940, SLP (C) Nos.9170-9172 of 1999 are  directed against Civil Review Petition Nos.117 of  1997 and  118  of 1997 arising from the judgment/order passed  in the  said two appeals and Civil Miscellaneous Appeal  No.691 of  1997.  In Civil Miscellaneous Appeal No.691 of 1997, the appellant-  M/s.National Heavy Engineering Cooperative  Ltd. (hereinafter  referred  to as the ’company’) challenged  the order  passed by the District Judge, Jaipur City, appointing the  arbitrator  in compliance with the direction passed  by the  High  Court  in the appeals.   In  Civil  Miscellaneous Appeal  No.283/92, the order passed by the District Judge on 24.2.1992,  allowing  the  application   filed  by  M/s.King Builders  (hereinafter referred to as the ’contractor’)  for appointment  of  an arbitrator and directing the company  to take  steps  for appointment of an arbitrator in  accordance with  Clause 66 of the agreement within one month, was under challenge.   Civil  Miscellaneous Appeal No.825 of 1994  was filed   by  the  contractor   challenging  the  order  dated 31.1.1994  dismissing  the  contractor’s  application  under Section  8 of the Act.  The High Court, on consideration  of the  matter,  dismissed appeal No.283 of 1992 and  confirmed the  order  dated 24.2.1992 passed by the Subordinate  Judge and  allowed  the  appeal No.825 of 1994 and set  aside  the order  dated 31.1.1994 passed by the Subordinate Judge.  The

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High  Court,  while  allowing the  contractor’s  application filed  under  Section  8 of the Act, directed  the  District Judge, Jaipur city to appoint an arbitrator for adjudication of  the dispute which has arisen between the parties  within one month.  In paragraph 6 of the counter affidavit filed by the  contractor  in  this Co      urt, it has  been  averred inter  alia  that  the  trial Court, in  compliance  of  the judgment  and order of the Additional Chief Engineer ,  High Court,  appointed one Shri M.M.Singh, retired P.W.D.  as the arbitrator.It is relevant to state here that the Tilam Sangh had   suggested  appointment  of   Sri  K.C.Puri,  a  former Executive  Engineer  to  act as the  sole  arbitrator.   The question  that arises for consideration is who is to act  as arbitrator  for  adjudication of the disputes raised by  the parties  in  the case;  whether it is the former  Additional Chief  Engineer  appointed  by  the   Court  or  the  former Executive  Engineer  as suggested by Tilam Sangh.  The  High Court  has  taken the view that the arbitrator appointed  by the  lower  court, in compliance with the order of the  High Court  dated  19th May, 1997, should act as the  arbitrator. We have heard learned counsel appearing for both the parties and  perused the impugned order/judgment passed by the  High Court.

     The  learned  counsel  for the  appellant  strenuously urged   that   only   the   arbitrator  appointed   by   the Administrative Head of the Tilam Sangh is entitled to act as arbitrator since his appointment is in terms of Clause 66 of the  Agreement  between  the parties.  The  learned  counsel appearing  for  the respondent on the other  hand  contended that since the arbitrator appointed by the Court is a former Additional  Chief Engineer who is more experienced than  the former  Executive  Engineer appointed by the  Administrative Head  of  Tilam Sangh, this Court should not interfere  with the  order passed by the High Court in which the appointment of   the  former  has   been  confirmed.   Alternatively  he contended that if the appellant is agreeable, a retired High Court  Judge  may  be appointed as arbitrator in  the  case. Considering  the  nature  of the controversy raised  in  the case,  we  specifically  asked the learned counsel  for  the appellant if the appellant has any serious objection against the continuance of the arbitrator appointed by the Court and if  so,  the  basis  for the same.  We also put  it  to  the learned  counsel that whether the appellant is agreeable for appointment of a retired High Court Judge as arbitrator.  To both  these  questions, the learned counsel could not  offer any  specific  reply.  As noted earlier, the District  Judge appointed  a  former Addl.  Chief Engineer as arbitrator  in compliance  with  the direction in the order passed  by  the High  Court.   It  is  stated by  learned  counsel  for  the respondent that the said arbitrator has already entered upon the  reference  but the matter could not proceed further  in view of the interim order passed by this Court on 30th July, 1999.   Considering the facts and circumstances of the  case and the submissions made by learned counsel for the parties, we  are  of  the  view  that the order  of  the  High  Court confirming  the appointment of arbitrator by the lower court warrants  no  interference in exercise of  the  jurisdiction under  Article  136 of the Constitution.   Accordingly,  the Civil Appeals are dismissed.  No costs.