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Judgment
S. Rajeswaran, J.—This O.P. has been filed u/s 34 of the Arbitration and Conciliation Act, 1996 to set aside the award dated 30.8.2002
passed by the said P. Sivapragasam served on the petitioner by post on 30.9.2002.
The brief facts are as follows:
The 1st respondent herein (since deceased) filed O.P.No. 667/1998 before this Court to appoint an arbitrator to adjudicate the dispute arising out
of the contract entered into between the parties on 2.1.1996. The petitioner herein filed her counter in O.P.No. 667/98 contending that no dispute
arose with regard to agreement dated 2.1.96 as the entire amount of Rs. 23,68,600/- was already paid, to the 1st respondent as per the terms of
the agreement. On 2.3.2001 this Court appointed one Mr. B. Sivapragasam a retired Chief Engineer, as an arbitrator.
But the 2nd respondent herein whose name is P. Sivapprakasam sent a letter to the petitioner stating that he was appointed as an arbitrator.
Initially it was not known to the petitioner that the person appointed by this Court and the 2nd respondent are two different persons and once it
came to light that they are different persons, the petitioner objected to the 2nd respondent from proceeding with the matter. Very strangely the 2nd
respondent sent a letter dated 23.4.2001 to Hon''ble, Chief Justice of this Court requesting him to correct the initial and the designation mentioned
in the order dated 2.3.2001 Without even waiting for the correction of the order as requested by him, the 2nd respondent sent a letter to the
petitioner dated 25.6.2001 informing that he himself corrected the initial and the designation. As the 2nd respondent is not the person appointed by
this Court, the petitioner did not participate in the arbitration proceedings resulting in an exparte award being passed by the 2nd respondent and
challenging the exparte award dated 30.8.2002, the above O.P. has been filed u/s 34 of the Act, 1996.
The petitioner has raised the following grounds to assail the award:
1) The 2nd respondent is not the arbitrator appointed by this Court in O.P.No. 667/1998 and therefore he had no authority to pass the award on
30.8.2002.
2) The arbitrator has committed a serious misconduct in correcting the initial and designation by himself even after sending a letter to Hon''ble Chief
Justice of this Court requesting him to modify the order.
3) Having informed that the award would be passed on 15.10.2001 and again on 3.11.2001, the 2nd respondent passed the award finally on
30.8.2002 only and the reason for not passing the award during the interregnum period was not explained by the 2nd respondent.
Heard the learned Senior Counsel appearing for the petitioner and the learned Counsel for respondents 3 to 5 who were impleaded as Legal
Representatives of deceased 1st respondent in and by order dated 27.2.2006 in application No. 841/2006.
I have considered the rival submissions.
In the order dated 2.3.2001, in O.P.No. 667/1998, the Hon''ble Chief Justice of this Court appointed Thiru B. Sivaprakasam, retired Chief
Engineer to adjudicate the issues between the parties and ordered that the said arbitrator shall enter into reference within 15 days and publish his
reasoned award at the earliest in accordance with law.
It is not in dispute that the petitioner herein has objected to 2nd respondent''s continuation as arbitrator as he is not the person appointed by this
Court. In one of his letters, dated 18.6.2001, 2nd respondent informed the petitioner that he received a certified copy from the Hon''ble Chief
Justice to his address for which he replied and a copy of that reply was enclosed with the letter dated 18.6.2001. In that letter dated 18.6.2001,
2nd respondent''s name was printed as P. Sivapprakasam and he was described as Chartered Engineer, Licensed Surveyor, loss assessor, panel
arbitrator, approved valuer and consulting engineer. Nowhere it was mentioned that he was a retired Chief Engineer in that letter. A perusal of the
reply dated 23.4.2001 sent by 2nd respondent to the Hon'' Chief Justice of this Court (enclosed along with the letter 18.6.2001) would show that
second respondent in that letter dated 23.4.2001 requested the Chief Justice to correct his initial as ''P'' instead of ''B'' and also his designation as
Senior Chartered Engineer. Thus it is very clear that 2nd respondent is very much aware that in the order dated 2.3.2001 the named arbitrator is
''B''. Sivaprakasam, a retired Chief Engineer.
But very curiously in his letter dated 25.6.2001 2nd respondent informed the petitioner that his initial and designation have been wrongly and
inadvertently mentioned by the office of the Madras High Court and he corrected the same and promptly communicated the same to the Chief
Justice by letter dated 23.4.2001.
I am baffled at the conduct of 2nd respondent in sending such a letter dated 2 5.6.2001. First of all, in his letter dated 23.4.2001 he only made
a request to the Chief Justice to correct his initial and also his designation. Than itself is not an acceptable procedure. 2nd respondent is not
expected to write to Chief Justice directly and if at all he has some grievance, the same is to be addressed to Registrar General of this Court or an
appropriate application could have been taken by him before this Court to get appropriate orders. Having sent, such a letter dated 23.4.2001
directly to the Chief Justice of this Court, 2nd respondent himself now claimed that he himself had corrected the mistake and communicated the
same to Chief Justice in his letter dated 23.4.2001.
I am, not able to accept the conduct of the 2nd respondent arbitrator in showing unwarranted enthusiasm to adjudicate the matter and his
undue haste in correcting the order of this Court by himself without taking appropriate steps to get appropriate orders is certainly uncalled for. This
conduct of the 2nd respondent would certainly create an apprehension in the mind of the petitioner about his impartiality and independence.
Therefore I am unable to approve this conduct of 2nd respondent.
In one of her letters dated 27.6.2001 the petitioner wrote to 2nd respondent that correcting the order by himself is not correct and it should be
done in accordance with law. She further reiterated in her letter dated 27.6.2001 that he was not the person appointed by the Chief Justice and he
has no jurisdiction to proceed with the arbitration. Further she affirmed that if in spite of her letter dated 27.6.2001 and if an award was passed by
2nd respondent, the same would be ignored by her. Even after receiving this letter 2nd respondent has not taken any steps to establish that he was
the person appointed by this Court by approaching this Court. Instead he went ahead with the arbitration proceedings exparte and informed in his
letter dated 15.10.2001 that filing of award was extended by 20 days from 15.10.2001 and finally the award was passed on 30.8.2002.
I am of the view that the petitioner has got valid reasons to question the identity of 2nd respondent and it is not the case of questioning the
authority and jurisdiction of the arbitrator on the basis of the agreement and contract entered into between the parties. In fact what is questioned is
the 2nd respondent''s identity with regard to his initial and designation as they differed from the initial and designation spelt out in the order of this
Court dated 2.3.2001 made in O.P.No. 667/1998. Once the issue of identity crept, in, even if 2nd respondent happened to be the same person,
as appointed by this Court, 2nd respondent should clear any doubt and controversy surrounding his initial and designation by taking out
appropriate application either by himself or through 1st respondent herein. But he decided to correct the mistakes by himself which would amount
to taking the law into his own hand and this unilateral action of 2nd respondent, is deprecated.
Justice should not only be done and it should seem to be done. Therefore I find force in the submissions of the learned Senior Counsel that the
exparte award passed by 2nd respondent is without jurisdiction and authority as the identity of arbitrator is not yet made clear even now.
When an award passed by an arbitrator in a manner which shocks the judicial conscience of this Court, this Court can certainly set aside the
same u/s 34 of the Act 1996. Further, the petitioner was not able to present her case effectively in the arbitration proceedings as 2nd respondent''s
identity was put to question by her and the same has not yet been made clear by 2nd respondent even row.
Even though a number of decisions are referred to by the learned Senior counsel for the petitioner, I do not deal with them as I have decided
to set aside the award on the ground that 2nd respondent has failed to conduct himself in a manner known to law and he has not still made clear
about his identity which was seriously questioned by the petitioner.
Hence I am inclined to interfere with the award of 2nd respondent dated 30.8.2002 and the same is set aside. No costs.