DULAL PODDARversusEXECUTIVE ENGINEER, DONA CANAL DIVISION AND ORS.

A
                         DULALPODDAR
                               v.
        EXECUTIVE ENGINEER, DONA CANAL DIVISION AND ORS.

                              NOVEMBER 12, 2003
B
                     [V.N. KHARE, CJ. AND S.B. SINHA, J.)


          Arbitration Act, 1940:

c          Ss. 8 and 30-Court appointing arbitrator without notice to other
     party-Arbitrator passing ex-parte award-Effect of-Arbitration-Interim
     award by arbitrator-Without considering claim of contractor, arbitrator
     passed final award-Application uls 8 by contractor-Court without issuing
     a notice to other party i.e. the Department, appointing another arbitrator-
D    Department filed revision before High Court-Arbitrator made an ex-parte
     award-Objection of Department uls 30 rejected by civil court-On appeal
     High Court setting aside order of appointment of arbitrator as also the
     award given by arbitrator-Held, admittedly no notice at all was sent to the
     Department before appointing the arbitrator and the award given by the
     arbitrator was ex-parte one-Furthermore, the award made ~Y the arbitrator
E    having been passed without giving an opportunity of hearing to the
     Department was illegal and void-On facts, civil court may consider
     desirability of appointing a new arbitrator.

           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4269 of 2002.
F         From the Judgment and Order dated 27.7.2001 of the Patna High Court
     in Appeal from Original Order No. 260 of 1997.

           Ms. Kumud L. Das and S.B. Upadhyay for the Appellant.

G          Saket Singh and B.B. Singh for the Respondent.

           The following Order of the Court was delivered :

          The appellant, who was a contractor, entered into an agreement with the
     respondents for carrying on construction of a canal. The agreement provided
II                                       484
         DULAL PODDAR v. EXECUTIVE ENGINEER, DONA CANAL DIVISION        485
that in case of any dispute arising under the contract, the matter would be A
decided by an Arbitrator who would be the Superintending Engineer. Disputes
and differences having been arisen between the parties, the Arbitration
Agreement was invoked by the appellant pursuant whereto the respondent
herein appointed the Superintending Engineer as the Arbitrator. The said
Arbitrator passed an interim award. Inspite of several requests made by the
appellant herein the Arbitrator did not consider his claims and pass a final B
award.

      The appellant herein, thereafter filed an application under Section 8 of
the Arbitration Act, 1940 in the Court of Subordinate judge 1, Bettiah. It
appears that the said court without issuing a notice to the respondents C
appointed a retired Chief Engineer as an Arbitrator. When the respondents
came to know about the appointment of the said Arbitrator, they filed a
revision petition before the High Court challenging the appointment of the
said Arbitrator as illegal. In the revision petition no order of stay however was
passed and as a result of that the Arbitrator proceeded to make an ex-parte
award. In the meantime, when the Civil Revision Petition came up for hearing D
before the High Court, itwith view that since an award had already been made
by the Arbitrator, it would be open to the respondents to challenge the
appointment of the Arbitrator by means of an objection under Section 30 of
the Act before the Civil Court. Accordingly, the respondent filed an objection
before the Civil Court. The Civil Court reflected the said objection. The E
respondents, thereafter, preferred an appeal against the said order of the Civil
Court before the High Court. The High Court allowed the said appeal and set
aside the appointment of the Arbitrator as well as the award given by the
Arbitrator. It is against the said judgment the Contractor is before us in appeal
by means of special leave petition.
                                                                               F
       We have heard the learned counsel for the parties and we are of the
view that the view taken by the High Court does not suffer from any legal
infirmity. It is not disputed that no notice at all was sent to the respondent
before appointing Arbitrator. It is also not disputed that the award given by
the arbitrator was an ex-parte one. Furthermore. Such an award which have G
been made by the Arbitrator having been passed without giving an opportunity
of hearing to the respondent herein, was illegal and void. We therefore, do
not find any merit in the appeal. Hence, it is dismissed. There will be no order
as to costs.

                                                                              H
    486                    SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A        We, however, having regard to the facts and circumstances of this case
    are of the opinion that the Civil Court may consider the desirability of
    appointing a new Arbitrator in terms of the provisions of the Act expeditiously
    as possible.

    RP.                                                        Appeal dismissed.
B