SUPREME COURT OF INDIA
Yashwith Construction P. Limited
Vs
Simplex Concrete Piles India Limited and Another
Special Leave Petition (Civil) 11279 of 2006 (Cc 3801/2006)
(P. K. Balasubramanyan and R.V. Raveendran, JJ)
03.07.2006
P. K. BALASUBRAMANYAN, J.
1. Delay condoned.
2. On a dispute having arisen, the Managing Director of the respondent company
appointed an arbitrator in terms of the arbitration clause. The arbitrator
resigned. Thereupon the Managing Director of the respondent company, in view of
the mandate in the arbitration agreement promptly appointed another arbitrator.
At that stage, the petitioner approached the Chief Justice of the High Court
under Section 11 sub- Section 5 read with Section 15(2) of the Arbitration
& Conciliation Act, 1996 (for short "the Act"), praying that the
Chief Justice may appoint a substitute arbitrator to resolve the disputes
between the parties. The Chief Justice found that the appointment of the second
arbitrator by the Managing Director, after the resignation of the first
arbitrator, was valid in law since it was permissible under the contract and
the right to make such an appointment was saved by Section 15(2) of the Act.
The argument that Section 15(2) of the Act referred to statutory rules
providing for appointment of Arbitrators and not to a contractual provision for
such appointment was rejected by the learned Chief Justice. It was held by him
that no occasion arose for him to appoint an arbitrator under Section 11(6) of
the Act in the case. Thus, the application was dismissed leaving the parties to
pursue their claims before the arbitrator appointed by the Managing Director in
terms of arbitration agreement between the parties.
3. The petitioner challenged the decision of the learned Chief Justice by way
of a Writ Petition in the High Court. The Division Bench noticed the decision
of this Court in SBP & Co. Vs. Patel Engineering Ltd. & Another
2005 (8) SCC 618 holding that the order passed by the Chief Justice is a
judicial order and no Writ Petition would lie in the High Court challenging
such an order and only an appeal could be filed in the Supreme Court invoking
Article 136 of the Constitution of India. But the Division Bench thought that
since that decision saved appointments made on or before the date that decision
was rendered by this Court, the Writ Petition filed by the petitioner would
also be saved and the Writ Petition could be decided on merits. The Division
Bench held that the position obtaining under Section 8(1) of the Arbitration
Act of 1940 differed from that available under the present Act especially in
the context of Section 15 thereof and that in terms of Section 15(2) of the
Act, the Managing Director could, on the basis of the arbitration agreement,
appoint another arbitrator when the originally appointed arbitrator resigned,
thus attracting Section 15(1)(a) of the Act. It further held that Section 15(2)
covered not only cases of appointments under statutory rules or rules framed
under the Act, but it would also take in the terms of the agreement between the
parties for appointment of an arbitrator and in that view, the Managing
Director, in the case on hand and on the terms of the arbitration agreement,
would have the right to appoint a substitute arbitrator. Thus, it was held that
the learned Chief Justice was right in rejecting the application made by the
petitioner. Thus, the Writ Petition was dismissed. It is this decision of the
Division Bench that is sought to be challenged in this petition for special
leave to appeal.
4. In our view, the learned Chief Justice and the Division Bench have rightly
understood the scope of Section 15 of the Act. When the arbitrator originally
appointed in terms of the arbitration agreement withdrew for health reasons,
the Managing Director, as authorized originally by the arbitration agreement,
promptly appointed a substitute arbitrator. It is true that in the arbitration
agreement there is no specific provision authorizing the Managing Director to
appoint a substitute arbitrator if the original appointment terminates or if
the originally appointed arbitrator withdraws from the arbitration. But, this
so called omission in the arbitration agreement is made up by the specific
provision contained in Section 15(2) of the Act. The withdrawal of an
arbitrator from the office for any reason is within the purview of Section
15(1)(a) of the Act. Obviously, therefore Section 15(2) would be attracted and
a substitute arbitrator has to be appointed according to the rules that are
applicable for the appointment of the arbitrator to be replaced. Therefore,
what Section 15(2) contemplates is an appointment of the substituted arbitrator
or the replacing of the arbitrator by another according to the rules that were
applicable to the appointment of the original arbitrator who was being
replaced. The term "rules" in Section 15(2) obviously referred
to the provision for appointment, contained 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 fulfill 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.
5. Since here, the power of the Managing Director of the respondent is saved by
Section 15(2) of the Act and he has exercised that power on the terms of the
arbitration agreement, we see no infirmity either in the decision of the
learned Chief Justice or in that of the Division Bench. We do not think it
necessary in this case to go into the question whether the Writ Petition before
the High Court was maintainable on the basis that it challenged an order of the
Chief Justice rendered on 4.3.2005, prior to the date of the decision in SBP &
Co. Vs. Patel Engineering Ltd. & Another(supra) rendered on 26.10.2005.
6. In this view of the matter, we see no reason to grant leave to appeal or
issue notice on this petition for special leave to appeal. The petition is
dismissed.