Advance Goods Carriers vs J & K State

This civil revision petition emanates from the order passed by the learned District Judge, Jammu on March 26,1997 disposing of the application

filed by the petitioner before that court for reference of dispute to the arbitrator and the request was made that the dispute may not be referred to

the named arbitrator in the agreement for the reasons recorded in the application, but the contention of the petitioner was to remove the named

arbitrator and to refer the dispute to an independent arbitrator. The learned District Judge after hearing the parties found that the dispute is existing

between the parties, so he referred the dispute to the named arbitrator. The operative portion of the impugned order reads as under:

The petitioner, however, has asked for the appointment of independent arbitrator instead of referring the matter to named and designated

arbitrator under the agreement. I am afraid that the petitioner's contention under these provisions cannot be considered at this stage as reference is

yet to be made to the arbitrator under the agreement and that contingency is still to come.

This order has aggrieved the petitioner only to the extent that the matter has not been referred to an independent arbitrator and no finding has

been given by the trial court. He has contended that he mentioned all the grounds in the application for referring the matter to an independent

arbitrator, but instead, the learned District Judge has referred the matter to the named arbitrator. His prayer is that the order be set aside and the

dispute be referred to an independent arbitrator. This contention is resisted by the other side on the ground that the petitioner cannot make

composite application under Section 8 and 20 of the Arbitration Act.

Heard the learned counsel for the parties.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties. I agree with the learned counsel for

the respondents that the petitioner could not file composite application for making a reference to the arbitrator and at the same time for removal of

named arbitrator and thirdly for appointing fresh arbitrator under sections 8 and 20 of the Arbitration Act. I have also gone through the following

authorities:

1) Union of India Vs. Om Parkash (AIR 1976 SC 1745)

2) Ved Parkash Mithal Vs. Union of India (AIR 1984 Delhi 325)

3) M/s National Project Construction Corp. Vs. M/s S.P.Enterprise (P) (AIR 1989 Cal. 155)

4) State of Kerala Vs. V.K.Natesan (AIR 1997 Kerala 277)

Wherein it has been held that composite application cannot be made in such circumstances. Learned counsel for the petitioner has also cited the

case Roshan Lal Vs. Chief Secretary (AIR 197.1 J and K 91) I have gone through this judgment also.

I agree with the learned counsel for the respondents that the composite application cannot lie under sections 8 and 20 of the Arbitration Act

because the procedures are different and the ends to be achieved are also different. The first thing for the petitioner was to apply that the reference

be made to the arbitrator. The trial court has gone into this point validly and has found that the dispute has arisen between the parties as the case is

justified to be referred to the arbitrator, but with this prayer the petitioner could not make other prayer that the named arbitrator in the agreement

be removed and fresh arbitrator be appointed. For that purpose, the procedure is different. The petitioner has to prove mala fides. However, in

this case the trial court has not gone into that question and very aptly it has been left open by the trial court to be decided in future. Once the case

is referred to the arbitrator according to the agreement and it is incumbent on the trial court to appoint the arbitrator named in the agreement, It will

be open to the counsel for the petitioner to apply for the appointment of fresh arbitrator after making out case for that. For these reasons,

therefore, the order of the lower court is upheld and the revision petition is dismissed.