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C.G. Gurucharan & Another v/s R.K. Estates, Rep. by its Managing Partner, R. Kashinath & Others

    Civil Miscellaneous Petition Nos. 292, 290, 291 of 2015

    Decided On, 13 June 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B. VEERAPPA

    For the Petitioners: Nikilesh M. Rao, M. Sunil Sastry, Advocate. For the Respondents: Sunil Sastry, Advocate.



Judgment Text

1. The application-IA No.1/2017 are filed along with affidavits in all these three petitions praying this Court to refer/appoint the substitute Arbitrator to the Arbitration Centre, Karnataka at Bengaluru to adjudicate the subject matter of the dispute between the petitioners and the respondents with regard to the Partnership deeds dated 13.08.2012, 22.04.2012 and 08.03.2012 respectively, on the ground that the proceedings before the Former Judge of this Court, Hon'ble Justice G. Patri Basavana Goud, who was appointed as an Arbitrator as per the orders of this Court dated 17.03.2017 and 11.11.2016 respectively in these cases, for the bonafide reasons, could not move forward to reach for adjudication. Therefore, the petitioners have filed the applications seeking for resumption of Arbitration Proceedings in exercise of powers under Section 15(2) of the Arbitration and Conciliation Act,1996 ( hereinafter referred to as the 'Act').

2. The Partnership Deeds dated 13.08.2012, 08.03.2012 and 22.04.2012 entered into between the parties are not in dispute and it is also not in dispute that the petitioners have complied with the provisions of Section 11(5) of the Act by issuing notices on different dates.

3. It is noticed from the records that, after the orders passed by this court on 07.03.2017 and 11.11.2016 in these petitions appointing Hon'ble Justice Sri. G. Patribasavana Goud, the Former Judge of this Court as an Arbitrator, His Lordship proceeded with the matter and ultimately, by a letter dated 06.08.2018 found CMP No.290/2015 the sole Arbitrator The Former Judge of this Court Hon'ble Justice G.Patri Basavana Goud intimated the petitioners in these petitions stating that, "After the first sitting of the Arbitral Tribunal was held on 14.12.2016, no further sittings could be held for reasons attributable to the parties. The result is that the mandate of the undersigned as Sole Arbitrator has stood terminated in terms of Section 29A(4) of the Act and His Lordship further stated that, in the circumstances, steps may be taken to have another Arbitrator appointed".

4. Further, in CMP No.292/2015 vide letter dated, the said Sole Arbitrator has stated that, "In the background of the other two connected matters in CMP No.290/2015 and CMP No.291/2015, arising out of CMP No.292/2015 not even the first sitting of the Arbitral Tribunal could be called in the present matter. The result is that the mandate of the undersigned as Sole Arbitrator has stood terminated in terms of Section 29A(4) of the Act. In the circumstances, steps may be taken to have another Arbitrator appointed".

5. In pursuance of the aforesaid endorsements/ letters dated 06.08.2018 of the said learned Sole Arbitrator, the present Interlocutory Applications (IA No.1/2017) are filed in these cases under Section 15(2) of the Act either to refer or substitute any other Arbitrator to the Arbitration Centre to resolve the dispute between the parties.

6. Learned counsel for the respondents has opposed the said applications by filing objections contending that, the said applications filed under Section 15(2) of the Act for substitution of another Arbitrator are not maintainable, because the petitioners have delayed the proceedings and not paid the Arbitration Fee to the Arbitrator and the same has been expressed by the Arbitrator in terms of his letter dated 06.08.2018.

7. I have heard the learned Counsel for the parties.

8. Sri. Kamath, learned Counsel for the petitioners contended that, in view of the provisions of Section 14(1)(b) of the Act, the applications filed by the petitioners in these cases under Section 15(2) of the Act, are maintainable, and this court has to substitute the arbitrator according to the Rules applicable to the appointment of the arbitrator already made. In support of his contentions, he mainly relied upon the dictum of the Hon'ble Supreme Court in the case of Shailesh Dhairyawan Vs. Mohan Balkrishna Lulla, (2016) 3 SCC 619 (Paras 11,12,15 & 17) and sought to allow the said applications.

9. Per contra, Mr. Chinnappa, learned Counsel for the respondents, reiterating the averments made in the objections statement to the said Interlocutory Applications, contended that, in view of the provisions of Section 14(2), 32(2)(c) and 29(A) of the Act, the applications filed by the petitioners are not maintainable. The petitioners have to approach the competent Court of Original Jurisdiction. Even the High Court is not having jurisdiction to decide the subject matter of arbitration which is the subject matter of a suit, the Civil jurisdiction in a District does not include the High Court. Therefore, this Court cannot exercise the original jurisdiction of Civil Court. Therefore, the very applications filed under Section 15(2) of the Act are not maintainable. Hence, if the petitioners are aggrieved by the Arbitrator not proceeding with the matter, the only remedy available to them is to approach the competent Court under the provisions of Section 14(2) of the Act and the present applications are not maintainable before the Court.

10. In support of his contentions, the learned counsel for the respondents has relied upon the following judgments:-

i) [Lalithkumar Vs. Sanghavi (Dead) Through LRs. Neeta Lalithkumar Sanghavi and Another, (2014) 7 SCC 255][Paras-5,10,11,12]

2) [Nimet Resources Inc. and Another Vs.Essar Steels Ltd, (2009) 17 SCC 313.] [10,11,18,21]

11. The learned Counsel for the respondents has also relied upon the judgment of the learned Single Judge of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, in the case of Vinod Baid Vs. Chadalavada Krishnamurthy and Ors, (2018) 3 ALD 669. [Paras-5, 6, 12 & 14] and also the judgment of the learned Single Judge of the Delhi High Court [Angelique International Limited Vs. SSJV Projects private Limited and Others, (2018) 248 DLT 763] [Paras-5, 26, 27 & 28] and sought to dismiss the applications.

12. Having heard the learned Counsel for the parties, it is not in dispute that both the parties to the proceedings have entered into different Partnership Deeds as stated above and there exists an arbitration clause in all the Partnership Deeds and the petitioners have complied with the provisions of Section 11(5) of the Act, and this court has allowed the CMP Nos. 290/2015, 291/2015 and 292/2015 on 11.11.2016 and 17.03.2017, and with the consent of the parties, appointed the Former Judge of this Court the Hon'ble Mr. Justice G. Patribasavana Goud as the sole Arbitrator to adjudicate the dispute between the parties.

13. In view of the rival contentions urged, it is appropriate to consider the provisions of Section 2(1)(e) of the Act that the "Court" means-

(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject - matter of a suit, but does not include any Civil Court of a grade inferior to such Principal Civil Court, or any Court of Small Causes;

(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject- matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of Courts subordinate to that High Court."

14. A plain reading of the definition of 'Court' clearly depicts that, in the case of Arbitration, other than international commercial arbitration, the Principal Civil Court of Original Jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration , if the same had been subject matter of a suit, but does not include any Civil Court of a grade inferior to such Principal Civil Court or any Court of Small Causes. In the case of international commercial arbitration, the High Court in exercise of its ordinary civil jurisdiction having jurisdiction to decide the questions forming subject matter of the arbitration, if the same had been the subject matter of a suit and in other cases, the High Court having jurisdiction to hear appeals from decrees of Courts subordinate to that High Court.

15. Section 7 of the Act deals with the Arbitration Agreement. Sub-clause (5) of Section 7 deals with notice in writing to constitute arbitration agreement.

16. Section 11 of the Act refers to Appointment of Arbitrator.

17. Section 14 deals with failure or impossibility to act which reads as under:

14. Failure or impossibility to act.-

(1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if

(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and

(b) he withdraws from his office or the parties agree to the termination of his mandate.

(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.

(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or subsection (3) of section 12.

18. A plain reading of Section 14 of the Act makes it clear that (1) the mandate of an Arbitrator shall terminate and he shall be substituted by another Arbitrator, (a) if he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and (b) he withdraws from his office or the parties agree to the termination of his mandate. Sub-section (2) of Section 14 states that if a controversy remains concerning any of the grounds referring to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate. Sub-section (2) of Section 14 of the Act deals with the reason to terminate the mandate as contemplated under Clause (a) of Sub-section (1) of Section 14 and it does not deal with clause (b) of Sub-section (1) of Section 14.

19. Section 15 of the said Act deals with termination of mandate and substitution of Arbitrator which reads as under:

15. Termination of mandate and substitution of Arbitrator.-

(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate

(a) where he withdraws from office for any reason; or

(b) by or pursuant to agreement of the parties.

(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.

20. A plain reading of the said provision makes it clear that in addition to the circumstances referred to in Section 13 or Section 14, the mandate of an Arbitrator shall terminate (a) where he withdraws from office for any reason; or (b) by or pursuant to agreement of the parties. Sub-section (2) of Section 15 stipulates that where the mandate of an Arbitrator terminates, a substitute Arbitrator shall be appointed according to the rules that were applicable to the appointment of the Arbitrator being replaced.

21. The provisions of Sections 7, 11 and 15 of the Act clearly states that Arbitration Agreement, Proving for resolution of disputes by Sole Arbitrator, Death of Sole Arbitrator, Survival of Arbitration Agreement post death depends on intention of parties. If Arbitration Agreement does not prohibit appointment of substitute Arbitrator, Court can appoint one - Arbitration Clause providing for resolution of disputes arising at any time between parties by Sole Arbitrator, has no nexus with life time of Sole Arbitrator. The Court can appoint another arbitrator on death of Sole Arbitrator or for any other reason as held by the Hon'ble Supreme Court in the case of ACC Limited vs- Global Cements Ltd., (2012) AIR SC 3824.

22. It is also relevant to extract the reasoning of the learned Arbitrator in these proceedings while he requested to appoint another Arbitrator.

(a) In CMP Nos. 290/2015 291/2015, the learned Arbitrator by his intimation letter dated 6.8.2018 has stated as under:

"After the first sitting of the Arbitral tribunal was held on 14.12.2016, no further sittings could be held for reasons attributable to the parties. The result is that the mandate of the undersigned as Sole arbitrator has stood terminated in terms of Section 29A(4) of the Arbitration and Conciliation Act 1996.

In the Circumstances, steps may be taken to have another Arbitrator appointed."

(b) In CMP 292/2015 the learned Arbitrator by his intimation letter dated 6.8.2019 has stated as under:

"In the background of the other two connected matters arising out of CMP 290/2015 and CMP 291/2015, not even the first sitting of the arbitral tribunal could be called in the present matter. The result is that the mandate of the undersigned as Sole arbitrator has stood terminated in terms of Section 29A(4) of the Arbitration and Conciliation Act 1996.

In the Circumstances, steps may be taken to have another Arbitrator appointed."

23. On careful perusal of the said intimation letter, the reasons assigned by the learned Arbitrator clearly depicts that, after the first sitting of the Arbitral tribunal was held on 14.12.2016, no further sittings could be held for reasons attributable to the parties. The result is that the mandate of the learned Judge as Sole Arbitrator has stood terminated in terms of Section 29A(4) of the Arbitration and Conciliation Act, 1996.

24. In this background, it is worthwhile to rely upon the dictum of the Hon'ble Supreme Court wherein while considering the provisions of Sections 7, 11(5) and 15 of the Act in the case of Shailesh Dhairyawan vs- Mohan Balkrishna Lulla, (2016) 3 SCC 619, at paragraphs 11, 12, 13, 15, 16 and 17 it has been held as under:

11. This was the state of the law in India until the 1996 Act repealed inter alia the 1940 Act. Since we are concerned with the correct interpretation of Section 15 of this Act, it is set out herein below:-

"Section 15.Termination of mandate and substitution of arbitrator.- (1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate----

(a) where he withdraws from office for any reason; or

(b) by or pursuant to agreement of the parties.

(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal."

The reason for the change in law under the 1996 Act is because it was modeled on the Uncitral Model Law on International Commercial Arbitration. The Statement of Objects and Reasons for the 1996 Act makes this clear as follows:

"2. The United Nations Commission on International Trade Law (UNCITRAL) adopted in 1985 the Model Law on International Commercial Arbitration. The General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice. The UNCITRAL also adopted in 1980 a set of Conciliation Rules. The General Assembly of the United Nations has recommended the use of these Rules in cases where the disputes arise in the context of international commercial relations and the parties seek amicable settlement of their disputes by recourse to conciliation. An important feature of the said UNCITRAL Model Law and Rules is that they have harmonised concepts on arbitration and conciliation of different legal systems of the world and thus contain provisions which are designed for universal application.

3. Though the said UNCITRAL Model Law and Rules are intended to deal with international commercial arbitration and conciliation, they could, with appropriate modifications, serve as a model for legislation on domestic arbitration and conciliation. The present Bill seeks to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and to define the law relating to conciliation, taking into account the said UNCITRAL Model Law and Rules." Article 15 of the Model Law, on which Section 15(2) is based, reads as follows:

"15. Appointment of substitute arbitrator.- Where the mandate of an arbitrator terminates under article 13 of 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced."

12. Three judgments of this Court have thrown considerable light on the correct construction of Section 15(2) of the Act. In Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd., (2006) 6 SCC 204, the arbitration clause stated that the Managing Director of the respondent company was to appoint an arbitrator in terms of the said clause. The appointed arbitrator resigned, after which the Managing Director of the respondent company promptly appointed another arbitrator. The correctness of the second appointment was challenged in an application made by one of the parties under Section 11(5) of the Act read with section 15(2) praying that the Chief Justice of the High Court may appoint a substitute arbitrator to resolve the disputes between the parties. This application under Section 11 was dismissed, which dismissal was upheld by a Division Bench of the High Court. This Court agreeing with the Division Bench judgment held as under:-

"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 authorised originally by the arbitration agreement, promptly appointed a substitute arbitrator. It is true that in the arbitration agreement there is no specific provision authorising 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 party concerned as per the arbitration agreement, to fulfil 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 person concerned 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."

(emphasis supplied)

13. In SBP and Company (2) v. Patel Engineering. Ltd. and Anr., (2009) 10 SCC 293, this Court had to construe Section 15(2) in the light of the arbitration clause in that case. The arbitration clause read as follows:-

"7 '19. During the continuance of this piece-work agreement/contract or at any time after the termination thereof, if any difference or dispute shall arise between the parties hereto in regard to the interpretation of any of the provisions herein contained or act or thing in relation to this agreement/ contract, such difference or dispute shall be forthwith referred to two arbitrators for arbitration in Bombay, one to be appointed by each party with liberty to the arbitrators in case of differences or their failure to reach an agreement within one month of the appointment, to appoint an umpire residing in Bombay and the award which shall be made by two arbitrators or umpire as the case may be shall be final, conclusive and binding on the parties hereto.

If either party to the difference or dispute shall fail to appoint an arbitrator within 30 calendar days after notice in writing having been given by the parties or shall appoint an arbitrator who shall refuse to act then the arbitrator appointed by the other party shall be entitled to proceed with the reference as a sole arbitrator and to make final decision on such difference or dispute and the award made as a result of such arbitration shall be a condition precedent to any right of action against any two parties hereto in respect of any such difference and dispute.'"

(emphasis in original)

15. In ACC Ltd. v. Global Cements Ltd., (2012) 7 SCC 71, the arbitration clause with which this Court was confronted read as follows:-

"2 . '21. If any question or difference or dispute shall arise between the parties hereto or their representatives at any time in relation to or with respect to the meaning or effect of these presents or with respect to the rights and liabilities of the parties hereto then such question or dispute shall be referred either to Mr. N.A. Palkhivala or Mr. D.S. Seth, whose decision in the matter shall be final and binding on both the parties."

[emphasis in original]

16. As both Shri Palkhivala and Shri Seth had died, it was contended by the petitioner before this Court that the arbitration clause would not survive as the two named arbitrators were the only persons who the parties had reposed their faith in. In arriving at the conclusion that substitute arbitrators could be appointed, this Court held:

"17.Section 15(2) of the Act provides that where a substitute arbitrator has to be appointed due to termination of the mandate of the previous arbitrator, the appointment must be made according to the rules that were applicable to the appointment of the arbitrator being replaced. No further application for appointment of an independent arbitrator under Section 11 will lie where there has been compliance with the procedure for appointment of a substitute arbitrator. On appointment of the substitute arbitrator in the same manner as the first, no application for appointment of independent arbitrator under Section 11 could be filed. of course, the procedure agreed upon by the parties for the appointment of the original arbitrator is equally applicable to the appointment of a substitute arbitrator, even if the agreement does not specifically say so. Reference may be made to the judgment of this Court in Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd, (2006) 6 SCC 204.

18. Sections 14 and 15 provide the grounds for termination of the mandate of the arbitrator on the ground of incapability of the arbitrator to act or if he withdraws from his office or when the parties agree to the termination of the mandate of the arbitrator. Section 15(2) states that a substitute arbitrator shall be appointed as per the rules that were applicable to the appointment of the arbitrator being replaced. Section 15(2), therefore, has to be given a liberal interpretation so as to apply to all possible circumstances under which the mandate may be terminated.

21. The legislative policy embodied in Sections 14 and 15 of the Act is to facilitate the parties to resolve the dispute by way of arbitration. The arbitration clause if clearly spells out any prohibition or debarment, the court has to keep its hands off and there is no question of persuading or pressurising the parties to resolve the dispute by a substitute arbitrator. Generally, this stands out as an exception and that should be discernible from the language of the arbitration clause and the intention of the parties. In the absence of such debarment or prohibition of appointment of a substitute arbitrator, the court's duty is to give effect to the policy of law that is to promote efficacy of arbitration.

28. The incident of the death of the named arbitrators has no nexus or linkage with the expression "at any time" used in Clause 21 of the agreement. The time factor mentioned therein is the time within which the question or dispute or difference between the parties is resolved as per the agreement. The arbitration clause would have life so long as any question or dispute or difference between the parties exists unless the language of the clause clearly expresses an intention to the contrary.

29. The question may also arise in a given case that the named arbitrators may refuse to arbitrate disputes; in such a situation also, it is possible for the parties to appoint a substitute arbitrator unless the clause provides to the contrary. Objection can be raised by the parties only if there is a clear prohibition or debarment in resolving the question or dispute or difference between the parties in case of death of the named arbitrator or their non-availability, by a substitute arbitrator.

30. We are of the view that Clause 21 does not prohibit or debar the parties in appointing a substitute arbitrator in place of the named arbitrators and, in the absence of any prohibition or debarment, parties can persuade the court for appointment of an arbitrator under Clause 21 of the agreement." (emphasis supplied)

17. Thus, it will be seen that in the Yashwith Constructions case this Court construed Section 15(2) liberally and held that the expression "the rules" that were applicable to the appointment of the arbitrator would include the arbitration clause or agreement itself, apart from any institutional rules or other rules which may apply. Since it was clear that the Managing Director in the aforesaid case was the appointing authority for a particular arbitrator, in case the said arbitrator appointed refuses to act, the Managing Director was stated to be the authority under the arbitration agreement that could always appoint a substitute arbitrator in terms of Section 15(2). Similar is the case in the ACC Ltd. judgment where this Court held that despite two named arbitrators having died, substitute arbitrators could be appointed in terms of the said clause unless there is a clear prohibition or debarment that could be read on a true construction of the arbitration agreement. It found that the expression "at any time" clearly showed that the arbitration clause had no nexus with the lifetime of the named arbitrator and therefore no such prohibition could be read. It also held that the procedure agreed upon by the parties for the appointment of the original arbitrator is equally applicable to the appointment of a substitute arbitrator, even if the agreement does not specifically say so, as this is the mandate of Section 15(2) of the Act.

25. Though Sri P. Chinnappa, learned Counsel for the respondents with vehemence tried to persuade this Court that in the given circumstances, the provisions of Section 14(2) r/w Section 29-A of the Act applies and therefore, the petitioners have to approach the competent Civil Court as contemplated under Section 14(2) of the Act and the applications filed under Section 15(2) before this Court are not maintainable, cannot be accepted for the simple reason that the endorsement/intimation letters issued by the learned Arbitrator clearly attracts the provisions of Sections 14(1)(b) and Section 15(1)(a) of the Act. Once the learned Arbitrator withdraws from the very office for any reason, the provisions of Section 15(2) of Act attracts. It is also not in dispute that this Court appointed the learned Arbitrator by consent of both parties exercising the powers under the provisions of Section 11(6) of the Act. In view of the endorsement/intimation expressing his unwillingness/ reasons attributable to both parties to continue with the proceedings, this Court cannot delegate the petitioners to approach the Principal Civil Court of original jurisdiction as contended by the learned Counsel for the respondents and the applications filed invoking the provisions of Section 15(2) of the Act are maintainable.

26. In so far as the judgment relied upon by the learned Counsel for the respondents in the case of Nimet Resources Inc. and Another vs- Essar Steels Limited, (2009) 17 SCC 313, the learned Single Judge of the Hon'ble Supreme Court while dealing with the provisions of Sections 14(1)(a), 14(2) and 11(5) and 11(6) of the Act has held that application for termination of mandate would, therefore, lie to Principal Civil Court of Original Jurisdiction

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and not to Supreme Court even though arbitrator was appointed under Section 11(5) or 11(6) of the Act by Chief Justice or his designate. Once an arbitrator is nominated, Chief Justice or his designate does not retain any further jurisdiction. The said judgment has no application to the facts and circumstances of the present case. 27. In so far as the judgment relied upon by the learned Counsel for the respondents in the case of Lalitkumar V. Sanghavi (Dead) through L.Rs. vs- Dharamdas V. Sanghavi and Others, (2014) 7 SCC 255, the Hon'ble Supreme Court while dealing with the provisions of Sections 14(2), 5, 2(1)(e) and 32(2)(c) of the Act in respect of termination of proceedings by Arbitral Tribunal on the ground that the claimant took no interest in the matter despite many adjournments and one of the claimant filed an application invoking Section 11 for appointment of Arbitrator to adjudicate the dispute, held that invocation of Article 226 of the Constitution of India against the order passed by Arbitral Tribunal is not maintainable. It also held that the legality of termination of mandate of Arbitral Tribunal, is to be decided by the Court under provisions of 1996 Act, and not under Article 226 of the Constitution of India by way of writ proceedings. In the present case unwillingness to proceed with the proceedings expressed by the learned Arbitrator is for the reasons attributable to both the parties. Therefore, the said judgment also has no application to the facts and circumstances of the present case. 28. In so far as the judgment relied upon by the learned Counsel in the case of Vinod Baid vs- Chadalavada Krishnamurthy and Others, (2018) 3 ALD 669 wherein with reference to provisions of Section 14(1)(a) and (b), the learned Single Judge of Andhra Pradesh High Court applying the provisions of Section 14(2) of the Act has held that the aggrieved party has to approach the competent Civil Court under the provisions of Section 14(2) r/w Section r/w Section 29-A of the Act. The said judgment is not applicable to the facts and circumstances of the present case. 29. The judgment of the Delhi High Court in the case of Angelique International Limited vs- SSJV Projects Private Limited and others,2018 VIAD(Del) 586 is with regard to the provisions of Sections 13, 14 and 29-A of the Act. Admittedly, in the facts and circumstances of the present case, Section 14(1)(b) attracts. Therefore, the petitioners can maintain an application to substitute Arbitrator under the provisions of Sub-section (2) of Section 15 of the Act. Hence, the said judgment also has no application to the facts and circumstances of the present case. 30. For the reasons stated above, applications I.A.1/2017 filed in all these civil miscellaneous petitions are allowed and in exercise of powers under Sub-section (2) of Section 15 of the Act, the Hon'ble Sri Justice A.V. Chandrashekara, Former Judge of this Court is appointed as the Sole Arbitrator in terms of the Arbitration Clause of Partnership Deeds dated 8.3.2012 and 22.4.2013 in all the three matters to adjudicate the dispute in terms of the Partnership Deeds entered into between the parties in accordance with law. 31. All the contentions raised by the parties are left open to be urged before the learned Arbitrator. 32. Registry is directed to send a copy of this order to the Hon'ble Sri Justice A.V. Chandrashekara, Former Judge of this Court as well as to the Arbitration Centre forthwith for reference.
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