M/S. YASHWITH CONSTRUCTIONS (P) LTD.versusM/S. SIMPLEX CONCRETE PILES INDIA LTD. & ANR.

A                MIS. YASHWITH CONSTRUCTIONS (P) LTD.
                                           v.
           MIS. SIMPLEX CONCRETE PILES INDIA LTD. & ANR.

                                   JULY 3, 2006

B        [P.K. BALASUBRAMANY AN AND R. V. RA VEENDRAN, JJ.]

                                                                                    ~-



         Arbitration and Conciliation Act, 1996:

         Sections 11 and 15(2)-Appointmenl of arbitrator-Arbitrator initially
C appointed in terms of the agreement resigned on health ground-Promptly
  another arbitrator appointed by the same party-The other party filing
  application u!s 11 before Chief Justice of High Court for appointment of
  arbitrator-Chief Justice finding the appointment of successor arbitrator in
  order and declining to interfere-Writ Petition-Division Bench agreeing with
D the view of Chief Justice and dismissing writ petition-Held, since the power
  of the Managing Director of the respondent is saved by Section 15(2) and he
  has exercised that power on the terms of the arbitration agreement, there is
  no irifirmity either in the decision of the Chief Justice or of the Division
  Bench-It is not necessary in this case to go into the question whether the writ
  petition before the High Court was maintainable on the basis that ii challenged
E an order of the Chief Justice rendered prior to the decision rendered in Patel
  Engineering's case.*

          *SBP & Co. v. Patel Engineering ltd. & Anr., (2005] 8 SCC 618,
    referred to.

F        CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil)
    No. 11279 of 2006.

          From the Judgment and Order of the High Courrt of Judicature, Andhra
    Pradesh at Hyderabad dated 4.3.2005 in A.A. No. 50/2004 and dated
G   25.I 1.2005 in W.P. No. 8458/2005.

          Kiran Suri for the Petitioner.

          The Judgment of the Court was delivered by


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      P.K. BALASUBRAMANY AN, J. I. Delay condoned.                                                A
        2. On a dispute having arisen, the Managing Director of the respondent
 company appointed an arbitrator in terms of the arbitration clause. The
arbitrator resigned .. Thereupon the Managing Director of the respondent
company, in view of the mandate in the arbitration agreement promptly
appointed another arbitrator. At that stage, the petitioner approached the Chief                  B
Justice of the High Court under Section I I sub-Section 5 read with Section
 l 5(2) of the Arbitration & Conciliation Act, 1996 (for short "the Act"),
praying that the Chief Justice may appoint a substitute arbitrator to resolve
the disputes between the parties. The Chief Justice found that the appointment
of the second arbitrator by the Managing Director, after the resignation of the                   C
first arbitrator, was valid in law since it was permissible under the contract
and the right to make such an appointment was saved by Section 15(2) of the
Act. The argument that Section 15(2) of the Act referred to statutory rules
providing for appointment of Arbitrators and not to a contractual provision
for such appointment was rejected by the learned Chief Justice. It was held
by him that no occasion arose for him to appoint an arbitrator under Section                      D
11 (6) of the Act in the case. Thus, the application was dismissed leaving the
parties to pursue their claims before the arbitrator appointed by the Managing
Director in te1ms of arbitration agreement between the parties.

       3. The petitioner challenged the decision of the learned Chief Justice by
 way of a Writ Petition in the High Court. The Division Bench noticed the                         E
 decision of this Court in SBP & Co. v. Patel Engineering Ltd. & Anr., [2005]
 8 SCC 618 holding that the order passed by the Chief Justice is a judieial
order and no Writ Petition would lie in the High Court challenging such an
order and only an appeal could be filed in the Supreme Court invoking
Article 136 of the Constitution of India. But the Division Bench thought that                     F
since that decision saved appointments made on or before the date that decision
was rendered by this Court, the Writ Petition filed by the petitioner would
also be saved and the Writ Petition could be decided on merits. The Division
Bench held that the position obtaining under Section 8( I) of the Arbitration
Act of 1940 differed from that available under the present Act especially in
the context of Section 15 thereof and that in terms of Section 15(2) of the                       G
Act, the Managing Director could, on the basis of the arbitration agreement,
appoint another arbitrator when the originally appointed arbitrator resigned,
thus attracting Section 15(1)(a) of the Act. It further held that Section 15(2)
covered not only cases of appointments under statutory rules or rules framed
under the Act, but it would also take in the terms of the agreement between                       H
    98                        SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A the parties for appointment of an arbitrator and in that view, the Managing
  Director, in the case on hand and on the terms of the arbitration agreement,
  would have the right to appoint a substitute arbitrator. Thus, it was held that
  the learned Chief Justice was right in rejecting the application made by the
  petitioner. Thus, the Writ Petition was dismissed. It is this decision of the
B Division Bench that is sought to be challenged in this petition for special
  leave to appeal.

         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 tenns of the arbitration agreement withdrew for health
C reasons, the Managing Director, as authorized originally by the arbitration
  agreement, promptly appointed a substitute arbitrator. It is true that in the
  arbitration agreement there is no specific provision authorizing the Managing
  Director to appoint a substitute arbitrator ifthe 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
D 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(l)(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
E 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
F no failure on the part of the concerned party as per the arbitration agreement,
  to fulfil his obligation in 1terms 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 concerned person had failed to act in terms of the
G 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 'Jriginal agreement or provision applicable to the appointment
H of the: arbitrator at the initial stage. We are not in a position to agree with
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        the contrary view taken by some of the High Courts.                                              A
              5. Since here, the power of the Managing Director of the respondent is
.....   saved by Section 15(2) of the Act and he has exercised that power on the
        terms of the arbitration agreement, we see no infirmity either in the decision
        of the learned Chief Justice or in that of the Division Bench. We do not think
        it necessary in this case to go into the question whether the Writ Petition                      B
        before the High Court was maintainable on the basis that it challenged an
        order of the Chief Justice rendered on 4.3 .2005, prior to the date of the
        decision in SBP & Co. v. Patel Engineering Ltd. & Anr (supra) rendered on
        26.10.2005.

              6. In this view of the matter, we see no reason to grant leave to appeal                   c
        or issue notice on this petition for special leave to appeal. The petition is
        dismissed.

        R.P.                                                  Special leave petition dismissed.