LexPRASUN ROY versus CALCUTTA METROPOLITAN DEVELOPMENT AUTHORITY & ANR.
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PRASUN ROY A ~ v. CALCUTIA METROPOLITAN DEVELOPMENT AUTHORITY & ANR. JULY 20, 1987 B [SABYASACHI MUKHARJI AND G.L. OZA, JJ.] ~ Arbitration Act, 1940; s. 20-Arbitrator appointed by Court- Parties submitting to his jurisdiction by filing claims, attending sit- • -<(.__ tings-Challenge to appointment order-Whether permissible. Clause 24 of the arbitration agreement between the parties pro- c vided for reference of all questions of dispute arising under the contract ,. to the sole arbitration of the Director/Unit Heads of the respondent Authority, not connected with the particular work. All such officers having already expressed their opinion in respect of the disputes that had arisen, the appellant apprehended that he may not get justice or D proper relief. He, therefore, moved an application under s. 20 of the ~ Arbitration Act for appointment of an independent member of the bar as arbitrator instead of the named officer of the respondent Authority. A Single Judge of the High Court held that the arbitrator named had disqualified himself on the ground of bias and appointed an outside E advocate as the sole arbitrator on April 19, 1983. When arbitration proceedings commenced both the parties submitted to his jurisdiction , and tiled their respective claims and documents. Upto November 1985 the said arbitrator held 7 4 sittings which were attended by the parties of both sides and their counsel. Respondent No. 1 had moved three --.,(, interlocutory applications. Both the parties got extension of arbitration F proceedings at least/4 times upto November 1985. Respondent No. 1 challenged the validity of the order of appoint· ment of arbitrator dated April 19, 1983 in the year 1985, when another Single Judge took the view that if the court was bound to enforce the particular agreement with which the parties came to the court, the G parties were not entitled to have any fresh opportunity to appoint a new .. ~rbitrator as that would amount to a new agreement between the parties. He further observed that no appointment can be made by the Court on the ground of disqualification of the arbitrator without having proper materials on record and without coming to a definite finding on this point. Until then the Court did not have the jurisdiction to appoint H 569 570 SUPREME COURT REPORTS [1987] 3.S.C.R. A any new arbitrator and had to follow the correct machinery. This order ~~ of the Single Judge dated December 8, 1986 setting aside the earlier order dated April 19, 1983 was assailed in the appeal by special leave. B Allowing the appeal, this Court, HELD: Long participation and acquiescence in arbitration pro- .1 ceediugs preclude a party from contending that the proceedings were """! without jurisdiction. The principle is that a party' shall not be allowed to blow hot and cold simultaneously. [S73FJ _... . Basically the principle of waiver and estoppel is not only appli- C cable where the award had 1-een made but also where a party challenges the proceedings in which he participated. In the instant case, there was no demur but something which can be called acquiescence on the part of :A the respondents or which precludes them from challenging the parti- cipation. [574G-H] D Arbn. Jupiter General Insce. Co. Ltd. v. Corporation of Calcutta, A.I.R. 1956 Calcutta 470 at 472; Chowdhury Murtaza Hossein v. Mussumat Bibi Bechunnissa, 3 I.A. 209; N. Chellappan v. Secretary, Kera/a State Electricity Board & Anr., (1975] 1 S.C.C. 289 and Russel on Arbitration, 18th Edu. p. 105, referred to. E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1466 of 1987. From the Judgment and Order dated 8.12.1986 of the Calcutta High Court in Matter No. 1636 of 1985. F A.K. Sen. Shanker Kumar Ghosh and D.P. Mukherjee for G the Appellant. S.N. Kacker and G.S. Chatterjee for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. this is a~"f application challenging the order of the learned single judge dated the 8th December, 1986 of the High Court of Calcutta. By the impugned judgment the said learned Judge has set aside the order dated the 19th April, 1983 of another learned single judge on the ground, inter-alia, H that the first learned Judge, when she passed the order, acted without • ~ p ... P. ROY v. CALCUTTA METROPOLITAN [MUKHARJI. J.[ 571 jurisdiction. There was an arbitration agreement. Clause 25 of the s
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