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Judgment
Arindam Sinha, J
The Court : This arbitration petition for termination of mandate has been listed under heading 'To Be Mentioned' on citing urgency.
Mr. Tewari, learned advocate appears on behalf of petitioner and submits, arbitrator has exhibited bias against his client. He draws attention to letter dated 16th April, 2019 issued by arbitrator to the parties. He submits, when in the sitting held prior thereto there was no direction regarding costs, subsequent direction regarding costs by letter could not have been made.
He next draws attention to mail sent on 29th May, 2019, text of which is reproduced below:
"I didn't expect this complete turnaround from you. On your request I granted you time taking into account natural disaster Fani. The fact that the High Court may be closed for summer vacation is neither here nor there. For your information the High Court reopens on 10/06/2019. Stop giving lame excuses for failing to attend the Arbitration.
Please take note that even if you fail to attend, I will hold the meeting recording your deliberate absence and pass appropriate orders giving liberty to the petitioner to proceed with the case. I may also strike off your right of filing defence. If the result of the proceeding goes against you and you suffer an award you will be held responsible for your causing loss to the Government as the Government will have to deposit the awarded sum before any court allows it to file any appeal.
You have proven yourself not to be a man of words and your failure to attend on the date fixed will also result is costs being awarded against you.
This is really pathetic conduct by an authority of the state."
He submits further, his client's defence has been struck out. All these taken together are clear exhibition of bias against his client. His client does not expect justice from the Tribunal. He submits, arbitrator also changed dates as per his convenience but did not allow similar accommodation to his client. He relies on statements made in paragraph 7 of the petition, which are reproduced below:
"Your petitioner further states that the sole arbitrator even threatened the department officers stating that he will pass harsh order against the department and for that the department will suffer irreparably. From the very beginning the learned sole arbitrator is proceeding with absolute malafide intention with absolute bias. The conduct of the learned arbitrator is clear and he is not following the law of the land as well as not maintaining minimum etiquette of the post which he is holding in this matter. Firstly he imposed a cost upon the petitioner for his own mistake and after that he continued to pass one after another order during the strike of the lawyers knowing fully well that the petitioner will not be able to engage counsel. Secondly he is threatening the petitioner over phone and by mail stating that he will pass some strict order against the petitioner and against the officers of the petitioner so that their service book get affected. These behaviors are not expected from an arbitrator and these type of person should not be given any major responsibility like sole arbitrator for the ends of justice."
On query from Court regarding disclosure of order by minutes of sitting striking out defence of his client, he submits, it has not been disclosed in the petition. Mr. Dasgupta, learned advocate appears on behalf of respondent and disputes submissions made against arbitrator regarding procedure adopted by the Tribunal. With reference to paragraph 7 in the petition, he submits, no particulars have been given as cannot be given. Respondent not having defence to claim of his client has adopted this tactics. He submits, the petition should be dismissed.
Text of letter dated 16th April, 2019 issued by the Tribunal to parties is reproduced below:
"Please note that I am the Arbitrator appointed by the Hon'ble High Court at Calcutta in the above matter.
Please also take note that the next sitting of the arbitration will be held on 24th April, 2018 at 4.30 p.m. at 4, Ritchie Road, 2nd floor, Kolkata-700019.
The earlier direction given at the time of the first sitting for filing of Statement of Claim by the claimant will hold good and the claimant will be expected to file its Statement of Claim on the next date of arbitration.
With respect to the respondent, as I have noted in my letter dated 10th April, 2019 and also communicated over SMS to Mr. Prasad, the respondent will be entitled to enter their appearance on the next date of hearing i.e. 24th April, 2019 subject to
(i) Payment of costs assessed at Rs.20,000/- which is to be paid by the respondent at the commencement of the proceedings on the next date and
(ii) Payment of their proportionate share of the arbitration (sundry) expenses of Rs.10,000/- and the half share of the stenographer's remuneration and the clerk's remuneration of Rs.2500/- and Rs.1000/- respectively at the conclusion of the sitting on that date itself.
Respondent will be expected to make a short oral submission, as to gist on which their Statement of Defence is likely to be.
Copy minutes of the first sitting will be made over to the respective parties at the commencement of the second sitting which will be held, as already stated before at my residence at 4, Ritchie Road, Kolkata-700019 on 24th April, 2019 at 4.30 p.m."
On perusal of contents of above reproduced mail and letter issued by the Tribunal, this Court finds there was attempt at expedition. So far as letter dated 16th April, 2019 informing costs to be paid are concerned, if there has been any derogation from provisions made in section 31A of Arbitration and Conciliation Act, 1996, no case has been made out by petitioner that it could not so derogate. Petitioner having accepted terms for costs put by said letter, it seems to have derogated, if at all, from applicable provisions under section 31A and thereby waived its right to contend otherwise.
Mr. Tewari submits, in spite of pendency of this petition, the Tribunal had indicated award will be published tomorrow. On query from Court he submits, his client did not appear to argue its case before the Tribunal, since this arbitration petition was pending. In view of this submission, the Tribunal is requested to allow reasonable opportunity to petitioner to present its case on defence or otherwise, by argument on a date to be fixed by it in the next week. Petitioner has indicated readiness and willingness to present its case on any day therein.
With above observations, this petition is disposed of at this stage on consent of parties.