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Legal Volume 11, ex 204, 400 words 82 wpm (English)
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From the perusal of the records and the submissions of the parties we observe that the mandate of the arbitrator was extended by an agreement between the parties. Thus, it can be construed that the parties had not agreed to the extension of the mandate of the arbitrator failing which the mandate was automatically terminated. However, the contention of the appellant that the High Court had erred in not allowing the appellant to decide upon the appointment of an arbitrator pursuant to Sub-Section (2) of Section 15 of the Act must be accepted. In this connection it would be appropriate to refer to the relevant portion of the impugned judgment of the High Court which gives an elaborate observation on the above mentioned issue raised by the appellant. Arbitration is an informal, quick and easy alternative mode of adjudication of disputes by agreement of the parties. This Court clause was invoked way back in May 1996 and almost 10 years have expired since then. The appointment of successive arbitrator by the Chairman-cum-Managing Director of the respondent has only resulted in delay. When the mandate of an arbitrator is terminated on the ground of delay the rules applicable to the appointment of the arbitrator are to apply to the appointment of a new arbitrator. It would however be a mockery of justice if every time the mandate of an arbitrator was terminated or the arbitrator resigned or otherwise became unable to proceed the parties were to start from scratch by invoking the arbitration clause. Once the mandate of the arbitrator terminates the person required to appoint arbitrator is required to fill up the vacancy with utmost expedition failing which the provision of Section 11 (6) of the 1996 Act would be attracted. In the instant case as per the arbitration agreement the Chairman-cum-Managing Director was required to appoint a new arbitrator in case the arbitrator became unable to continue whatever be the reason. A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and or given effect as closely as possible. In other words the Court may ask to do what has not been done. The Court must first ensure that the remedies provided for are exhausted. It is not mandatory for the Chief Justice to appoint the arbitrator.
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