CUTTACK, India, July 29 -- Orissa High Court issued the following order on June 30:

04. This matter is taken up through Hybrid mode.

2. This is an application at the behest of the petitioner to substitute an Arbitrator for adjudication of the claim made before the earlier Arbitrator.

3. The dispute was referred and being adjudicated by the State Arbitration Tribunal, opposite party No.1 herein, but final adjudication could not be made as the same became non-functional because of the lack of coram. The proceeding remained in abeyance for a considerable period of time and the petitioner has approached this Court invoking Section 11 read with Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 for substitution of an Arbitrator to adjudicate the claim.

4. Opposite party No.2 being one of the contracting parties to the arbitration agreement conveys his intention that he has no objection if the substituted Arbitrator adjudicates the claim of the respective parties, which is pending for a pretty long time.

5. Section 15 of the Act contains the exhaustive provision relating to the termination of the mandate and the substitution of an Arbitrator provided the contingencies stipulated therein are eminently pleaded and present in the case. Section 14 of the Act is relatable to a termination of a mandate of an Arbitrator and the substitution by another Arbitrator, if the Arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay or he withdraws from his office or the parties agree to terminate such mandate.

6. Admittedly, in the instant case, the matter was referred to a statutory Tribunal constituted in the State for adjudication of the arbitral disputes by the Members to be appointed by the State Government, but by passage of time, the Tribunal becomes functionless as the Members are not timely appointed thereby impeding the adjudication of the arbitral dispute within a time bound manner. The object underlying the incorporation of the Arbitration and Conciliation Act, 1996 is founded upon the UNCITRAL model internationally recognized and India being the signatory at the U.N. Charter, the Act of 1996 was enacted with an avowed object of not only bringing uniformity in conducting the arbitration at the international level, but also to make the foreign awards enforceable within the country. The primary object of the said Act can be envisioned that the composition of the arbitral Tribunal is a party-centric and if the parties have chosen to resolve their disputes through an arbitral mechanism, the primacy should be given to the mandate of the parties.

7. Be that as it may, this Court finds that because of nonappointment of the Members in the arbitral Tribunal, the proceedings are kept at halt frustrating the core value of the said Act. The parties to the contract i.e., the petitioner and/or opposite party No.2 have agreed the substitution of an Arbitrator and uniformly agreed to the name of an Arbitrator.

8. Learned counsels for the parties agree to appoint Dr. Justice D.P. Choudhury (Rtrd.) to act as a substituted Arbitrator. Since the parties have agreed to the name of the said substituted Arbitrator, he is appointed as the sole Arbitrator to determine the disputes.

9. The arbitral Tribunal is directed to transmit all the records to the substituted Arbitrator within fifteen days from the date of the communication of this order. The substituted Arbitrator shall proceed with the arbitral proceeding from the stage at which the same is left because of the non-functioning of the arbitral Tribunal and shall publish the award within the statutory period provided in the said statute.

10. The arbitration shall take place under the aegis of the High Court of Orissa Arbitration Centre. The remuneration of the Arbitrator shall be as per 4th Schedule of the said Act and to be shared equally by the parties.

11. This arbitration petition is thus disposed of.

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