The principles laid down in the said decision cannot have any application in the present case although the decision rendered in this case in the decision under the Arbitration and Conciliation Act, 1996. Taking into consideration the arguments of the appellant, it is necessary to mention here that the court does not have any power to extend the time under the Act unlike Section 28 of the 1940 Act which had such a provision. The Court has therefore been denuded of the power to enlarge time for making and publishing an award. It is true that apparently there is no provision under the Act for the Court to fix a time limit for the conclusion of an arbitration proceeding, but the Court can opt to do so in the exercise of its inherent power on the application of either party. Where however the Arbitration agreement provide the procedure for enlargement of time and the parties have taken recourse to it, and consented to the enlargement of time by the arbitrator, the Court cannot exercise its inherent power in extending the time fixed by the parties in the absence of the consent of either of them. The counsel for the appellant further contended that the High Court could not have terminated the mandate of the arbitrator. With reference to the contention made by the appellant that the arbitrator having concluded the proceedings could not be said to have failed to act so as to attract the provision of Section 14 of the Act, which will call for termination of the arbitration proceedings. It is pertinent to mention here that the arbitrator had not concluded the proceedings as had been agreed to by the parties within the time fixed for doing so. It is an established statement that the said mandate of the arbitrator was terminated only because of the fact that the arbitrator having failed to conclude his proceedings within time did not warrant to be continued as an arbitrator in the absence of the consent of both the parties. It is clear that the arbitrator had extended the time provided to it without any concrete reasons whatsoever and thus his mandate was liable to be terminated. Sub section 1(b) further states that the mandate of an arbitrator shall also stand to be terminated if he withdraws or the parties agree to the termination. 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 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. (800 words)
