2003 PLP 2377 (YLR)

Ss. 17 & 30

Award, setting aside of-- Rule of Court

Scope

Parties had entered into different agreements for construction works

Agreements contained an arbitration clause

Dispute arose and the matter was referred to two arbitrators who pronounced the award wherein it was stated that opportunities were given to the appellant who failed to file written statement and by applying the provisions of O. VIII, R.10, C. P. C. the right of defence of the appellant was struck off

Said award was filed for making the rule of Court

Contention of the appellant was that sufficient opportunity of hearing was not given to him

Validity-- Appellant was not given proper opportunity of hearing and the defence had not been struck off by both the arbitrators and only 'one arbitrator was not competent to da so-- Apparent misconduct in the arbitration proceedings by the arbitrators was committed in conducting the arbitration proceedings-- Such an award could not be sustained

High Court remitted the matter to the arbitrators to hold de novo arbitration proceedings. Ali Akbar Qureshi for Appellant. Date of hearing: 17th March, 2003. F.A.Os. Nos.109 of 1998, 110 of 1998, 111 of 1998 and 112 of 1998, are being decided together, as all have arisen out of the single judgment of the Court below, and are between the same parties, with common facts and law point involved.

2. Briefly stated the facts of the case, are, that in all the appeals, the parties had entered into different agreements for the construction works, which contained an arbitration clause; a dispute arose between the parties, the matter was referred to the two arbitrators, nominated by the parties; the arbitrators pronounced their award on 6-8-1995. In the award, it is stated that certain opportunities were given to the appellant, for filing its written reply to the claim, but as the written statement was not filed, resultantly, by applying the provisions of Order VIII, rule 10, C.P.C., the right of defence of the appellant, was struck off; thereafter, the proceedings were conducted and the award was pronounced. This award was filed in the Court, for making it rule of the Court, when the appellant filed objections to the award, primarily, setting out a ground that the sufficient opportunity of hearing was not provided to the appellant. Anyhow, the parties were put to trial; O.W.1, is one of the two arbitrators, and while appearing as a witness, has deposed in clear and unequivocal terms, that he had never struck off the defence of the appellant, this part of the examination-in-chief has not been subjected to cross-examination by the respondent. O.W.2 is the other arbitrator, who though has stated that the unanimous award was given, but he, has not deposed to contradict the statement of O. W .1, that the defence of the appellant was struck off by both the arbitrators. It may be pertinent to state here, that the arbitration proceedings have not been filed by both the arbitrators before the Court, enabling the Court to see, if the defence of the appellant, was rightly struck off by the two arbitrators on 20-7-1985, as stated in the award. The respondent, even did not make any attempt, to apply the Court, for requisitioning the record of the arbitration proceedings.

3. In the light of above, I find, that the appellant, was not given appropriate opportunity of hearing, and the defence of the appellant, has not been struck off by both the arbitrators, and only one arbitrator was not competent in this behalf. As this is apparent misconduct in the arbitration proceedings, by I the arbitrators in conducting the proceedings, therefore, such award cannot be sustained. Resultantly, the appeals are allowed, the matters are remitted to the arbitrators, to hold de novo arbitration proceedings. In case, the arbitrators are not available to conduct the arbitration, either of the party can apply to the Court for the fresh appointment of the arbitration panel. In order to ascertain the availability of the arbitrators, the parties are directed to appear before the trial Court on 14-4-2003.

4. In F.A.O. No.111 of 1999, the grievance of the appellant, is that this case was distinguished from the other cases, but the Court below while disposing of all the matters through a single judgment, has totally confused the issues involved in this case, and has misread the record and ignored the objections of the appellant. Learned counsel for the respondent, has not been able to contradict this position, and has candidly conceded that the case was distinguishable, but has been mixed up with the other matters. Resultantly, the appeal is also accepted, the Court below is directed to decide the objections of the appellant in this case, after giving opportunity of hearing to both the parties in accordance with law. Consequently, the matter is remanded to the Court below for retrial, as per its own facts. M.U.K./F-160/L Appeals allowed.