DULAL PODDAR versus EXECUTIVE ENGINEER, DONA CANAL DIVISION AND ORS.

Citation: [2003] SUPP. 5 S.C.R. 484 · Decided: 12-11-2003 · Supreme Court of India · Bench: V.N. KHARE, S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
DULALPODDAR 
v. 
EXECUTIVE ENGINEER, DONA CANAL DIVISION AND ORS. 
NOVEMBER 12, 2003 
[V.N. KHARE, CJ. AND S.B. SINHA, J.) 
Arbitration Act, 1940: 
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. 
F 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4269 of 2002. 
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. 
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 
F 
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 
B 
are of the opinion that the Civil Court may consider the desira

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