Section 11 : Power to Court to remove arbitrators or umpire in certain circumstances
2023 PLD 1 ISLAMABAD
PAKISTAN MEDICAL COMMISSION (‘PMC’) through Secretary (Successor of Registrar PMDC), Islamabad VS CONSTRUCTION EXPERTS (PVT.) LIMITED
Ss. 5, 11, 20, 30 & 39 (iv)—Appointment of arbitrator—Designated arbitrator, change of—Influence on arbitrator—Dispute was with regard to appointment of arbitrator other than the one nominated in arbitration agreement between the parties and influence of National Accountability Bureau over the arbitrator so appointed—Validity—Basic idea of arbitration was settlement of disputes by tribunals chosen by parties themselves whose decision was to be accepted as final between themselves—Due weight had to be given to arrangement made by parties themselves relating to personnel and machinery for settlement of their disputes—In the case of a named arbitrator, reference had to be made to him and a party was precluded from approaching the Court for appointing an arbitrator other than the named arbitrator—Once a party entered into an agreement with eyes wide open, it could not wriggle out of the situation on the claim that designated person would not be impartial or objective—If at the conclusion of arbitration proceedings respondent felt that arbitrator had not acted independently or impartially or had suffered bias while rendering the award, it was always open to it to take such as a ground in its application under S. 30 of Arbitration Act, 1940 for setting aside the award—During the course of arbitration proceedings, if arbitrator had proceeded with the reference in a manner as to give reason to respondent to believe that he was misconducting the proceedings, he could file application under S.5 of Arbitration Act, 1940 to revoke authority of arbitrator—Application under S. 11 of Arbitration Act, 1940 could also be filed for removal of arbitrator—If NAB were to interfere with arbitrator, it would not just amount to perversion of the course of justice but would also be an actionable wrong—Where the arbitrator let himself be influenced by such a rank outsider to the contract while rendering an award, it would amount to “misconduct” not just as is understood in the arbitration parlance but also in the true sense of the word, i.e. wrongdoing—Very essence of impartial adjudication was defeated where an adjudicator would allow his mind to be influenced by a third party who did not have any statutory power or contractual authority to administer the contract—Adjudicator must not let himself be coerced into deciding a claim one way or the other—High Court maintained order of Trial Court referring the disputes between the parties to arbitration but set aside appointment of arbitrator other than the one designated by parties—Appeal was allowed accordingly.
2020 CLC 760 ISLAMABAD
The IMPERIAL ELECTRIC COMPANY (PRIVATE) LIMITED VS ZHONGXING TELECOM PAKISTAN (PRIVATE) LIMITED
Ss.11, 12 & 34—Arbitrator, removal of—Trial Court stayed proceedings of the suit and referred the matter to arbitrator—Plaintiff sought removal of arbitrator as he had refused to adjudicate upon the dispute—Trial Court dismissed the application filed by plaintiff—Validity—Willingness of arbitrator to enter upon reference and to adjudicate upon contractual duties between parties to reference was sine qua non for arbitration proceedings—Responsibility to sit as an arbitrator could not be thrust on a person unwilling or not having sufficient time to discharge responsibility of arbitrator—Arbitrator had failed to use all reasonable dispatch in entering on reference, requirement in S.11(1) of Arbitration Act, 1940 to remove him was satisfied—Petitioner had moved application under S.12(1) of Arbitration Act, 1940 before the Trial Court; S.12(1) provided inter alia that where the Court removed one or more arbitrators the Court could on the application of any party to the arbitration agreement, appoint persons to fill the vacancies—Disputes between parties could be referred to sole arbitrator appointed with consent of parties—Since parties could not concur on appointment of arbitrator, High Court while deciding revision against order of Trial Court refusing to remove arbitrator, had jurisdiction not to just remove named arbitrator who refused to enter upon reference but could also appoint an arbitrator in his place—High Court set aside order passed by Trial Court and appointed new sole arbitrator after removing previous arbitrator for not entering on reference by failing to use all reasonable dispatch—Revision was allowed accordingly.
2019 YLR 209 ISLAMABAD
Syed MUNIR SYED VS Sardar MUHAMMAD KAMAL KHAN
Ss. 20, 31, 33, 5 & 11—Civil Procedure Code (V of 1908), O. IX, Rr. 8 & 9—Partnership Act (IX of 1932), S.69—Specific Relief Act (I of 1877), Ss. 12, 42 & 54—Arbitration agreement—Suit for declaration, specific performance and permanent injunction dismissed for non-prosecution—Initiation of arbitration proceedings after dismissal of said suit—Res judicata, principle of—Applicability—Allegation of bias in the Arbitrator—Stay of arbitration proceedings—Scope—Plaintiff filed suit for declaration, specific performance and permanent injunction which was dismissed for non-prosecution and application for restoration of the said suit was moved—Application for initiation of arbitration proceedings was also moved before Arbitrator by the plaintiff—Defendant moved application before civil Court for stay of arbitration proceedings on the ground that Arbitrator had been impleaded as defendant in the civil suit and he was also witness of arbitration agreement—Trial Court stayed proceedings before the Arbitrator on the basis of allegation of bias—Validity—Order IX, R. 9, C.P.C. barred the institution of a fresh suit on the same cause of action which was subject matter of the earlier suit dismissed for non-prosecution—Invocation of arbitration clause of the agreement by the petitioner could not be termed as institution of a fresh suit—Arbitration with or without the intervention of the Court was not a suit—Application under S.20 of Arbitration Act, 1940 was not a suit stricto sensu—Section 69 of Partnership Act, 1932 did bar a partner in an unregistered partnership from instituting a suit to enforce a right arising from a contract—Application under S.20 of Arbitration Act, 1940 did not fall within the ambit of S.69 of Partnership Act, 1932—Suit instituted by the petitioner did not culminate in a judgment or a decree—Disputes between the parties were not adjudicated by the Civil Court on merits—Principle of res judicata was not applicable with regard to institution of arbitration proceedings by the petitioner—Petitioner had been deprived of seeking adjudication of his claim before any forum—When defendant in a suit had taken a step in the proceedings or filed a written statement then he would be disentitled from seeking a stay of suit on the basis of an arbitration agreement executed with the plaintiff—Defendant in the present case had objected to the maintainability of suit on the basis of arbitration agreement executed between the parties—Institution of suit or its dismissal for non-prosecution would not operate to place a disability on the petitioner from instituting arbitration proceedings in circumstances—Petitioner could not have been denied his right to institute arbitration proceedings against the respondent on the ground that he had earlier instituted a civil suit against the respondent—Arbitrator was named in the impugned arbitration agreement—Had the parties to the arbitration agreement no consensus ad idem with regard to its execution then respondent would not have objected to the maintainability of petitioner’s suit on the basis of said agreement— Impugned arbitration agreement was voluntary entered into therefore parties could not be allowed to resile from the same—Vague or unsubstantiated apprehensions could not be made standard for the removal of an arbitrator—Respondent had not pleaded specifically the basis on which he had alleged that the arbitrator was bent upon to decide the matter against him—Arbitrator had been impleaded as a defendant in the suit instituted by the petitioner but no relief had been sought against him—Mere fact that arbitrator had been impleaded as a defendant in the suit would not disqualify him from sitting in an adjudicating capacity over the dispute between the parties—Arbitrators should not attend Court and participate in the proceedings before Civil Court in which their removal or revocation of their authority had been sought whether or not they were impleaded as parties to such proceedings—Application to challenge the existence or validity of an arbitration agreement could be filed but no such application had been moved by the respondent—Authority of an appointed arbitrator or umpire should not be revoked except with the leave of the Court unless a contrary intention was expressed in the arbitration agreement—Impugned orders passed by the Courts below were set aside—Application for stay of arbitration proceedings was dismissed—Revision was allowed, in circumstances.
2018 PLD 1 ISLAMABAD
FEDERATION OF PAKISTAN through D.G. National Training Bureau VS JAMES CONSTRUCTION COMPANY (PVT) Ltd.
11 (2)—“Misconduct”—Connotation—Misconduct for purposes of Arbitration Act, 1940 is legal misconduct and is not moral turpitude, dishonesty or any immoral or unethical conduct—Misconduct not amounting to moral turpitude is called ‘legal misconduct’ and has a very wide meaning—Legal misconduct means misconduct in judicial sense arising from some honest though erroneous breach and neglect of duty and responsibility on part of arbitrator causing miscarriage of justice; there may be ample misconduct in a legal sense to make the court set aside award even when there is no ground to impute slightest improper motive to arbitrator—Misconduct includes failure to perform essential duties which are cast on an arbitrator; it also includes any irregularity of action which is not consonant with general principles of equity and good conscience which ought to govern conduct of an arbitrator.
2018 PLD 1 ISLAMABAD
FEDERATION OF PAKISTAN through D.G. National Training Bureau VS JAMES CONSTRUCTION COMPANY (PVT) Ltd.
Ss. 11, 12 & 20—Arbitration—Replacement of arbitrator— Principle—Matter was referred to arbitral tribunal comprising of two members appointed with consent of parties—Trial Court, on application under Ss.11 & 12 of Arbitration Act, 1940, removed arbitral tribunal and appointed a sole arbitrator—Validity—Where an arbitrator appointed by a party was removed under S. 11 of Arbitration Act, 1940, court was not bound to ask that party whose nominee had been removed to nominate another person to replace removed arbitrator—Court was also not bound to appoint nominee of party to replace removed arbitrator—Court could ask the party whose nominee had been removed to suggest names of suitable persons so as to enable the court to fill up vacancy caused by order of removal of an arbitrator—Court had to make the final choice for appointment of arbitrator—Court in appointing a sole arbitrator after removing two member arbitral tribunal, was not bound to appoint a retired Judge of the Supreme Court at instance of party—No infirmity existed in order of the Trial Court appointing sole arbitrator and fixing his fee which both parties to dispute were bound to pay—Two membered arbitral tribunal was correctly removed by Trial Court and sole arbitrator was correctly appointed in exercise of powers conferred under S.12(2)(a) of Arbitration Act, 1940—Revision was dismissed in circumstances.
2017 YLRN 384 LAHORE-HIGH-COURT-LAHORE
Ch. ABDUL KARIM VS ALI SHER
Art. 33—Arbitration Act (X of 1940), Ss. 6, 11 & 12—Appointment of referee with consent of parties—Status of referee—Information provided by referee—Presumption—Appointment of referee for information—Procedure—Decree passed on sole statement of the referee—Trial Court during pendency of suit, with consent of parties, appointed third person as referee for settlement of issues between the parties, and subsequently decreed the suit as per statement of said referee—Plaintiff contended that appointment of referee was not made in terms of Art. 33 of Qanun-e-Shahadat, 1984, but the same was covered under Arbitration Act, 1940, and as decision made by the referee was an award, parties were entitled to file their objections thereto—Validity—Article 33 of Qanun-e-Shahadat, 1984 provided existence of parties—First that some party must have referred the matter to a third person—Second, that the reference must be for information and third, that the referee must make a statement qua such information and lastly that such statement shall be deemed to be an admission by the party who expressly referred to such third person for information—When one party referred another party to a third party for information, first party would be presumed to have undertaken as his own the information furnished by third party—Information need not be a decision involving judicial determination of dispute or controversy—Under Art. 33 of Qanun-e-Shahadat, 1984, status of third person/referee was more of a witness than of either an arbitrator or a local commission—When a case was agreed upon to be decided on statement of referee, the matter might fall under Art. 33 of Qanun-e-Shahadat, 1984, but a reference to third person to decide a matter in dispute was reference to arbitration—Parties, in the present case, never agreed that the referee should have made statement simpliciter furnishing information, but entire dispute between parties was entrusted to him—Matter did not fall under Art. 33 of Qanun-e-Shahadat, 1984 by mere use of the word “referee”—No decree could be passed on decision/statement of referee, which was an “award”, unless parties were given an opportunity to file their objections to the award within period provided under Arbitration Act, 1940—Impugned judgment and decree was set aside and case was remanded to Trial Court for decision afresh after inviting objections of parties—Appeal was dismissed in circumstances.
2017 PLD 497 KARACHI-HIGH-COURT-SINDH
NASIM AHMED VANA VS State
Chap. II, Ss. 3 to 19 & Chap. III, S.20—Reference to arbitration—Principle—Bar exists on invoking provisions of S.20 (Chap.III) of the Arbitration Act, 1940, when parties to arbitration agreement have invoked provisions of Chap. II (Ss. 3 to 19) of Arbitration Act, 1940.
2017 PLD 497 KARACHI-HIGH-COURT-SINDH
NASIM AHMED VANA VS State
Ss. 3 to 20 & 37(4)—Arbitration—Agreement fixed by time—Plaintiffs contended that parties had arbitration agreement between them and the matter be sent to arbitrator for decision—Validity—Agreement fixing time during which reference could be made to arbitration was impliedly considered valid by S.37(4) of Arbitration Act, 1940, which vested Court power to extend such time when it was of the view that some undue hardship was likely to be caused to parties by not extending same—Where agreement itself could not be acted upon having become inoperative due to invalidity, the Court was not entitled to appoint arbitrator of its own choice and substitute original agreement of parties—High Court declined to extend validity of arbitration agreement under S.37(4) of Arbitration Act, 1940, as circumstances did not warrant to do so nor any undue hardship would be caused to parties to arbitration agreement, who were pursuing their remedies in parallel legal proceedings which were more effective and expeditious—Suit was dismissed in circumstances.
2017 CLC 599 ISLAMABAD
PAK. U.K. ASSOCIATION (PVT.) LTD. VS The HASHEMITE KINGDOM OF JORDAN
Ss. 20, 5 & 11—Civil Procedure Code (V of 1908), O.VII, R.11—Arbitration agreement—Condition in the agreement for referring the dispute to the engineer for his decision—Application for filing the arbitration agreement in Court—Scope—Allegation of bias of arbitrator—Effect—Petitioner moved petition for filing arbitration agreement in the Court wherein respondent submitted an application for rejecting the said petition on the ground that petitioner had not exhausted the precondition of referring the dispute to the engineer—Contention of petitioner was that engineer was biased and controversial—Validity—Petitioner was aware of the requirement to refer the dispute in the first instance to the engineer—Dispute was not referred to the engineer for decision under the contract—Dispute between the parties had to be referred in the first instance to the engineer who was supposed to give his decision within stipulated period—If the engineer gave his decision or did not give his decision within stipulated period then aggrieved party could refer the matter in dispute to arbitration—Right of aggrieved party to refer the dispute to arbitration was pre-conditioned with a reference of such dispute to the engineer—Application for filing the arbitration agreement in the Court without fulfillment of such condition was liable to be dismissed as premature—Court could not rewrite the agreement between the parties or exempt a party from complying with its contractual obligation of the contract—Where reference to engineer could not be made because he had resigned or refused to entertain the dispute or had been disengaged by the employer then dispute could be referred to arbitration without a reference to the engineer—Party could not bypass the requirement of a reference of dispute to an engineer on the ground of bias unless court was satisfied that substantial miscarriage of justice would take place if such an application for filing the arbitration agreement was dismissed as premature—Court must not lightly relieve the parties from their bargain—Discretion had to be exercised cautiously and parties should not be relieved from a forum they had chosen because they feared that the engineer’s decision might go against them—Bias of an arbitrator was one of the grounds on which an arbitrator could be removed or his authority could be revoked—Mere suspicion of a party must not lead to the conclusion that authority hearing the proceedings was biased—Apprehension must be judged from a healthy, reasoned and average point of view and not on mere apprehension of any whimsical person—Where allegations of fraud, misrepresentation, collusion or mala fide were attributed then necessary particulars and details should be unfolded—Bald or vague statement to such effect would be of no legal consequence—Mere fact that engineer had in past given decision against a party or had expressed a view/opinion adverse to the said party could not be made a ground for avoiding the contractual obligation—Respondent had right to insist that dispute should be resolved in accordance with the procedure provided in the contract—Application for rejection of petition for filing the arbitration agreement in the court was allowed and petitioner’s application was dismissed as premature—Petitioner might subject to law refer the dispute to the engineer in terms of contract for decision.
2016 PLD 121 SUPREME-COURT
KARACHI DOCK LABOUR BOARD VS QUALITY BUILDERS LTD.
11—Arbitrator, appointment of—Dispute between parties over legality of sole arbitrator’s appointment—Participation in arbitration proceedings under protest—When the sole arbitrator had been appointed irregularly, participation in the (arbitration) proceedings (by the objecting party) under protest did not amount to consent on part of such a party and it could approach the court to set aside such appointment.
2016 PLD 121 SUPREME-COURT
KARACHI DOCK LABOUR BOARD VS QUALITY BUILDERS LTD.
11—Arbitrator appointed in contravention of the Arbitration Act, 1940—Application to court under S.11 of Arbitration Act, 1940 for removing such arbitrator—Maintainability—Only those arbitrators could be removed (by court under S.11 of Arbitration Act, 1940), who had been in fact appointed, and a defective appointment made in contravention of the provisions of the Arbitration Act, 1940 was no appointment, hence removal could certainly and logically not follow—Application to court under S.11 of Arbitration Act, 1940 for removing an arbitrator would, thus, not be sustainable where the arbitrator was appointed in contravention of Arbitration Act, 1940 and was incompetent in law to act as an arbitrator.
2014 YLR 1628 LAHORE-HIGH-COURT-LAHORE
Mst. DAULAN BIBI VS Mst. AISHA BIBI
Ss. 11 & 17—Qanun-e-Shahadat (10 of 1984), Art. 129 (g)—Application for making award as rule of court—Contention of respondents was that disputed award was result of misconduct and arbitrator had travelled beyond his authority—Application for making award as rule of court was dismissed concurrently—Validity—Parties appointed arbitrator to resolve dispute with regard to agricultural property—Arbitrator had declared that deceased was Sunni—Sect of deceased was not to be resolved by the arbitrator as there was no dispute on the issue—Arbitrator had announced his award after a lapse of more than three years and had travelled beyond the reference by not deciding the dispute which was referred to him—Revenue authorities had attested inheritance mutation by considering deceased as Shia and same was still intact and respondents were declared to be legal heirs of the deceased—Dispute with regard to sect of deceased had already been decided not only by the revenue courts but also by the civil court—Applicants neither produced witnesses of agreement for appointment of arbitrator nor arbitrator had been produced in the witness box—Applicants themselves had withheld the best evidence for reason known to them and inference was to be drawn against them—Record of proceedings conducted by the arbitrator had not been produced before the court—Arbitration proceedings were considered to be sacred and sanctity had been given to said proceedings but arbitrator did not take care of his jurisdiction while making award—Arbitrator did not decide the dispute fairly and justly and committed misconduct—Both the courts below had decided the matter eminently—Applicants had failed to point out any perversity or illegality in the impugned judgments—Revision was dismissed in circumstances.
2009 MLD 451 ISLAMABAD
CAPITAL DEVELOPMENT AUTHORITY through Director Revenues CDA VS MUHAMMAD AHSAN
S.3—Arbitration Act (X of 1940), Ss. 8, 11 & 20—Abatement of proceedings—Arbitration clause—Interpretation of document—Agreement between parties contained a clause whereby in case of dispute the matter was to be referred to Chairman Capital Development Authority and his decision was to be final—Trial Court, on application filed by plaintiff, removed the Chairman as arbitrator and appointed another person as sole arbitrator—Order passed by Trial Court was maintained by Lower Appellate Court–Validity—Any provision in agreement entered into before year, 1975, regarding arbitration stood abrogated and annulled under S.3 of Capital Development Authority (Abatement of Arbitration Proceedings) Act, 1975—As agreement in question was signed in year, 1999, therefore, proceedings before arbitrator were not abated and provisions of S.3 of Capital Development Authority (Abatement of Arbitration Proceedings) Act, 1975, were not attracted—According to clause in question parties were to amicably settle their dispute failing which reference should have been made to the Chairman Capital Development Authority whose decision would be final and binding on parties—Such clause in agreement could not be construed as an arbitration clause and had not attracted provisions of Arbitration Act, 1940—According to such clause, provision for alternate dispute resolution could be invoked with final decision being upon Chairman Capital Development Authority—Intention of such clause was to settle disputes with minimum of procedure, fuss and delay—Such-like clauses were to expedite resolving the disputes expeditiously where dispute delays could cause huge monetary losses to both the parties—Both the Courts below had erred in interpreting the clause in agreement and had gone beyond its scope—Judgments passed by both the Courts below were set aside and petition under Ss. 8, 11 and 20 of Arbitration Act, 1940, filed by plaintiff were dismissed.
2006 YLR 589 KARACHI-HIGH-COURT-SINDH
ABDULLAH CONTRACTORS VS WATER AND POWER DEVELOPMENT AUTHORITY
—-S. 11—‘Misconduct by arbitrator’ and `arbitrator misconducted the proceedings’—Concept—Misconduct—Meanings illustrated.
2006 CLC 1060 KARACHI-HIGH-COURT-SINDH
KARACHI DOCK LABOUR BOARD VS Messrs QUALITY BUILDERS LIMITED
—Ss. 5, 8, 9, 11, 20, 30 & 39—High Court appeal—Reappraisal of evidence—Appellate Court, jurisdiction of—Appointment of arbitrator—Failure to raise any objection—On the basis of arbitration clause in the contract between the parties, respond
2005 YLR 2709 KARACHI-HIGH-COURT-SINDH
MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED
—S. 14 & Chap.II [Ss.3 to 19]—Award—Arbitrator, after passing the award, is required to file the award in the Court within the meaning of S.14, Arbitration Act, 1940 and then further proceedings would be conducted by the Court under the other provis
2005 YLR 2709 KARACHI-HIGH-COURT-SINDH
MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED
–Ss. 20, 8, 34 & Chap. II [Ss.3 to 19]—Civil Procedure Code (V of 1908), O. VII, R.11—Suit for dissolution of partnership, rendition of accounts, permanent injunction and declaration—Recovery of amount was stayed under S.34, Arbitration Act, 1940 o
2003 CLC 1798 LAHORE-HIGH-COURT-LAHORE
COMMUNICATION AND WORKS DEPARTMENT VS Messrs PAVITAL/PIVATO JOINT VENTURE
—-Ss. 5, 11, 30 & 33—Qanun-e-Shahadat (10 of 1984), Art. 114–Setting aside of arbitration proceedings—Principle of estoppel–ÂApplicability—Remarks by Trial Court—Petitioner had chosen and appointed arbitrator unconditionally, without any re
2003 YLR 3289 KARACHI-HIGH-COURT-SINDH
Syed MUKHTAR HUSSAIN NAQVI VS Mst. Hajiani ZUBEDA
—-Ss.11 & 30– Award, setting aside of–Bias on part of Arbitrator—Plaintiff’s contention was that unsuccessful attempt on his part seeking removal of Arbitrator through Court had prejudiced his mind–Validity—Arbitrator being a former Judge of Supr
2003 YLR 1523 KARACHI-HIGH-COURT-SINDH
CIVIL AVIATION AUTHORITY, QUAID-E-AZAM INTERNATIONAL AIRPORT, KARACHI VS AER RAINTA INTERNATIONAL PAKISTAN (PVT.) LTD., KARACHI
—-S.11 — “Misconduct ” by arbitrator/umpire—What implies. In legal parlance with reference to arbitration proceedings misconduct implies failure to perform the essential duty of maintaining impartiality, equal treatment, just and proper assessment e
2002 YLR 2687 LAHORE-HIGH-COURT-LAHORE
PERMA CONSTRUCTION (PVT.) LTD VS OBEROI TEXTILES LTD
—-Ss.5 & 11—Revocation of authority of Arbitrator and his removal—Appointment of Arbitrator not revocable except with the leave of Court under Ss. 5 & 11 of the Act unless contrary intention is expressed in arbitration agreement—Arbitrator can be
2000 CLC 27 LAHORE-HIGH-COURT-LAHORE
INAYAT ALI VS DIWAN ALI
Ss. 2(a), 11 & 39—Agreement to appoint Referee—Revocation of appointment—Rejection of application —Appeal– -of amount, agreed to appoint Referee to decide the matter—Appellant/borrower filed application for revocation of appointment of Referee alleging that he had lost confidence in him as he was acting in a partisan manner—Said application was rejected on sole ground that one could not be allowed to approbate and reprobate—Validity—Decision to be bound by the statement of a Referee, was outcome of a contract and parties were at liberty to revoke it before it was acted upon—Appellant had applied for revocation of appointment of Referee before recording statement of Referee—Contention of respondent that once appellant had agreed to be bound by the decision/statement of Referee, he was bound by his own word and could not be allowed to retract, had no significance in circumstances as statement of Referee had not been recorded, before filing application for revocation of his appointment.
1998 SCMR 1618 SUPREME-COURT
HITACHI LIMITED VS RUPALI POLYESTER
Arbitration Act 1940 —-Ss. 31, 30, 5, 11 & 12—Constitution of Pakistan (1973), Art. 185(3)—Rules of Conciliation and Arbitration of the International Chamber of Commerce, Art. 13—Arbitration venue was England—Leave to appeal was granted by Supreme Court to consider as to what was the effect of the factum that the petitioners and respondents did not reside and were not located within Pakistan and whether procedural law/curia) law was deemed to be lex arbitri or lex fori i.e. the law, of England, under which the English Courts alone had jurisdiction in respect of proceedings for arbitration conducted in that country.
1998 CLC 1408 KARACHI-HIGH-COURT-SINDH
FAIZ AND SONS VS SECRETARY TO THE GOVT. OF N.-W.F.P.
Ss.30, 31, 32 & 11—Civil Procedure Code (V of 1908), O.VII, R.11–Application for setting aside award of arbitrator was filed in High Court at Karachi—All the defendants were neither residents nor working for gain within Province to which jurisdiction of said High Court extended—Addresses of defendants given in title of plaint related to Province of N.-W. F. P. —Parties in their agreement had agreed to refer their dispute to sole arbitrator or to his nominee who also resided outside the jurisdiction of High Court at Karachi–Effect—High Court at Karachi, thus, had no jurisdiction to entertain and try application for setting aside award–
1997 MLD 2387 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD YOUSAF VS COMMISSIONER, FAISALABAD DIVSION, FAISALABAD
—-R. 5—Arbitration Act (X of 1940), S.11—Constitution of Pakistan (1973), Art. 199— Constitutional petition—Question of competency of Constitutional petition where statutory remedy was available but not resorted to—Lease for recovery of Goods
1997 CLC 503 KARACHI-HIGH-COURT-SINDH
Q.M.R. EXPERT CONSULTANTS VS KARACHI DEVELOPMENT AUTHORITY, CIVIC CENTRE, KARACHI
Ss.8. 5 & 11???Removal of arbitrator???Petitioner on whose suggestion arbitrator was appointed sought removal of arbitrator on two grounds viz. arbitrator had served in service of respondent and that he had not made award even after expiry of extended period???Petitioner having suggested appointment of arbitrator and having participated in proceedings could not turn around and say that he was not aware of the fact that arbitrator had served in service of respondent???Such ground being frivolous and baseless was not maintainable??Petitioner, however, had raised objection that arbitrator had not given award even after expire, of extended time
1993 PLD 99 QUETTA-HIGH-COURT-BALOCHISTAN
MUHAMMAD AZIM & BROS. VS PAKISTAN
Ss. 11 & 30 — Civil Procedure Code (V of 1908), S.115 — Money suit — Sole arbitrator appointed by parties — Defendant’s application on 8-11-1992 under S.11, Arbitration Act, 1940, alleging misconduct against arbitrator and praying his removal culminated into direction to arbitrator on the same day to restrain himself from performing function of arbitrator — Arbitrator, however, allegedly submitting his award on the same day i.e., 8-11-1992 — Validity of award-Order-sheet dated 8-11-1992, maintained by the arbitrator showed that representative of defendant had attended the arbitrator. on 8-11-1992 at 6-00 p.m., which fact indicated that Arbitrator took up the matter after 6-00 p.m. when the Court had already passed a stay order against him which had been necessarily communicated to him during the working hours i.e. before 2-30 p.m.—Arbitration award having been submitted in Court after receipt of stay order from Court had no legal sanctity in the eye of law and even without setting it aside the s
1990 MLD 2010 KARACHI-HIGH-COURT-SINDH
DESIGN GROUP OF PAKISTAN VS CLIFTON CANTONMENT BOARD
Arbitration Act 1940 —-Ss. 11, 8(1) & 20(4)—Where in an arbitration agreement the arbitrator is mentioned by name or by office the Court will not substitute a new arbitrator in place of the agreed arbitrator—Court will normally not substitute arbitrator for the agreed arbitrator but Ss. 8(1) & 20(4) of the Act do not curtail the power of the Court to remove the arbitrator and appoint a fresh arbitrator—If the requirements of S.11 are satisfied the Court can remove arbitrator appointed by the parties and appoint an arbitrator of its choice.
1990 MLD 261 KARACHI-HIGH-COURT-SINDH
DESIGN GROUP OF PAKISTAN VS CLIFTON CANTONMENT BOARD
Arbitration Act 1940 –S.11–Removal of arbitrator–Where application for removal of arbitrator under S.11 was pending before Court and award given by arbitrator was not filed in Court, arbitrator, would become functus officio and application could be dismissed as infructuous.
1989 MLD 2434 SUPREME-COURT-INDIA
INTERNATIONAL AIRPORT AUTHORITY OF INDIA VS K.D. BALI
Arbitration Act 1940 —Ss. 5, 11–Arbitrator–Revocation of authority–Bias–Apprehension of bias must be judged from a healthy, reasonable and average point of view.
1989 MLD 54 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD SIDDIQUE VS MUHAMMAD ABDULLAH
Arbitration Act 1940 —Ss. 5, 8 & 11–Referee–Determination of position–Position of referee, held, was not to be determined with reference to statement he made rather it was agreement of parties which primarily was to determine his position–Referee admittedly was appointed with consent of parties who agreed that they would be bound by what the referee would state and that entire dispute might be decided accordingly–Parties not intending to constitute referee as arbitrator, as lie was not given authority to decide dispute, petitioner could not now turn around with the plea that referee should have been treated as an arbitrator merely because he made statement on basis of some material having been examined by him–Fact that the referee had acquired knowledge for making statement, could not affect his legal status as referee.
1989 MLD 1869 KARACHI-HIGH-COURT-SINDH
PROVINCE OF SINDH VS DASEEM CONSTRUCTION CO
Arbitration Act 1940 —Ss.11 & 12–Civil Procedure Code (V of 1908), OXLVII, R.1–Appointment of umpire–Appellant Government applying under Ss. 11 & 12 of Arbitration Act to revoke authority of umpire appointed by Court and to allow appellant to appoint its own umpire–Statement for appellant that it did not wish to press application filed under Ss. 11 & 12 of Act and application was accordingly dismissed-Appellant Government filed a review application for the recalling of order of dismissal of application under Ss. 11 &x 12 of Act and took position that counsel who represented it at the relevant time was not a duly appointed counsel–Court observing that original counsel who did not press application under Ss. 11 & 12 was a properly appointed advocate of Government and he had acted in performance of his duties as a responsible Advocate–Statement made by said counsel showed that in response to a letter of solicitor he had discussed matter with him and had agreed to conduct case on behalf of Government on payment of reasonable fee–Statement of counsel not controverted by solicitor or any other officer of the appellant Government–Held , mere engaging another counsel by appellants would not result in termination of authority of previous counsel who had already filed his memo. of appearance in the suit.
1987 CLC 612 KARACHI-HIGH-COURT-SINDH
WASEEM CONSTRUCTION COMPANY VS PROVINCE OF SIND
—O. XLVII, R. 1–Arbitration Act (X of 1940) S. 11–Review-Defendant filing application for review of judgment of Court passed in application filed by it under S.11, Arbitration Act for revoking authority of umpire–Application after thought, was frivol
1985 MLD 397 KARACHI-HIGH-COURT-SINDH
VASEEM CONSTRUCTION COMPANY VS PROVINCE OF SIND
Arbitration Act 1940 —-Ss. 11 & 8–Removal of umpire–Failure to enter upon reference within, period prescribed for making award–No allegation of moral turpitude–Delay constituting neglect or refusal to act within meaning of S. 8 of Act–Authority of umpire :evoked by Court.
1984 CLC 2375 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD LQBAL VS RIAZ SABIR
—- Ss. 11 & 30-Appellant filing application under S. 11 for removal of umpire-Such application embodying all objections which appellant could press into service under S. 30 for impeaching award-Application under S. 30 for setting aside award dismissed b
1983 CLC 3273 KARACHI-HIGH-COURT-SINDH
WASEEM CONSTRUCTION CO. VS PROVINCE OF SIND
Ss. 11 & 12-Arbitrator-Person appointed as arbitrator, held, has no concern with parties whether he is an employee of party or not Such person has his own independent capacity as arbitrator in which capacity he has to decide matter and if in that capacity he acquires any knowledge then it cannot be attributed to be knowledge of party appointing him.
1982 CLC 353 LAHORE-HIGH-COURT-LAHORE
WAPDA VS NAEEM TRADING CO.
Ss. 11, 21 & 28, First Sched., para. 3-Arbitrator-MisconductMeans not only moral turpitude but also neglect or breach of duty-Contravention of provision of para. 3 of First Sched. of Act apparent on part of Arbitrator-Proceedings recorded by him amply smacking lack of reasonable dispatch in proceeding with reference and making award Such, held, clearly amounted to misconduct and impugned order of his removal does not suffer from illegality.-[Words and Phrases-Arbitrator].
1982 CLC 750 KARACHI-HIGH-COURT-SINDH
PAKISTAN REFINERY LTD., KARACHI VS INDUS SHIPPING AND TRADING CO. LTD. KARACHI
11-Umpire-Facts to be ascertained already on record-Held, calling for arbitrator or umpire not necessary in circumstances of case.
1982 PLD 774 KARACHI-HIGH-COURT-SINDH
NIZARI CO-OPERATIVE HOUSING SOCIETY LTD. VS QAMARUDDIN M. KHIMANI
Ss. 11,20 & 33 read with Sind Co operative Societies Act (VII of 1925), S. 70?A?Jurisdiction?Provisions of Sind Co operative Societies Act, 1925 regulating arbitrations held, not inconsistent with Ss. 11, 20 & 33 of Arbitration Act, 1940 but bar imposed by S. 70?A of Act, 1925 ousts jurisdiction of civil Courts and as such Courts cannot entertain any wings which in any manner relate to or challenge any award, order or proceedings before Provincial Government Registrar, his nominee or Arbitrator.??(Jurisdiction).
1981 CLC 1152 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD SHARIF VS MUHAMMAD ISMAIL
11-Removal of arbitrators-Arbitrators sought to be removed having already submitted their findings to umpire and nothing further required to be done by them in connection with arbitration proceedings – Arbitrators having become functus officio when petitioner applied for their removal, application for their removal, held, misconceived and rightly rejected by trial Court.
1981 CLC 923 KARACHI-HIGH-COURT-SINDH
ADAMJEE INSURANCE COMPANY LTD. VS R. B. INDUSTRIES
11-Removal of arbitrator during pendency of arbitration proceedings-Underlying principle : Whether his acts/omissions complained against of nature resulting in miscarriage of justice.
1981 PLD 123 KARACHI-HIGH-COURT-SINDH
BOARD OF TRUSTEES OF THE PORT OF KARACHI VS NATIONAL CONSTRUCTION CO. (PAKISTAN) LTD.
Ss. 5, 9, 11 & 33 Jurisdiction of Arbitrator Question whether Arbitrator could enter upon reference or not Held, a jurisdictional question and not question of determination and interpretation of terms and conditions of contract Exercise of jurisdiction by Arbitrator under arbitration agreement depending on completion or noncompletion of works under contract Question whether works substantially completed Held, irrelevant to question of exercise of jurisdiction by Arbitrator Exercise of jurisdiction by Arbitrator depending upon existence of certain conditions Existence of such conditions can only be decided by Court and not by Arbitrator.
1979 CLC 565 LAHORE-HIGH-COURT-LAHORE
HASAN AMIN VS CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD
XXXIX, rr. 1 & 2 and Arbitration Act (X of 1940), Ss. 5, 9, 11 & 33-Inconvenience to parties, in case reference to arbitration ultimately found incompetent, greater than on account of stay of proceedings-Proceedings stayed on application under Ss. 5, 9, 11 &
1978 PLD 829 LAHORE-HIGH-COURT-LAHORE
PROVINCE OF PUNJA VS MESSRS INDUSTRIAL MACHINE POOL, LAHORE
3-Reference to arbitration-Law of arbitration-Nothing but law of compromise within framework of agreement of parties if not opposed to public policy-Arbitration not different from conciliation-Open to parties to settle their differences through arbitration Parties have prerogative to enter into as many arbitrations as they deem fit.
1977 PLD 973 KARACHI-HIGH-COURT-SIND
HAMEEN M. BASHIR LTD. VS HAJI SOOMAR HAJI HAJJAN POTOLI
11 Arbitrator’s misconduct Award, setting aside of Natural justice, principle of Party not manifesting any intention to defy proceedings of arbitration or not to appear before arbitrator at all events but seeking adjournments on cogent grounds Arbitrator. held, bound in circumstances to give opportunity to party seeking adjournment and to appear and produce evidence and misconducted himself in proceeding a=Dame and giving ex pane award.?[Arbitrator].
1975 SCMR 312 SUPREME-COURT
FAZAL MUHAMMAD VS PROVINCE OF WEST PAKISTAN
— S. 11-Arbitrator, removal of-Arbitrator giving his award and notice of such award to parties concerned but no stop taken by appellant, during pendency of application under section 11, to stop Arbitrator from entering on or proceeding with arbitration-A
1975 PLD 1427 LAHORE-HIGH-COURT-LAHORE
ABDUL HAMID VS GOVT. OF WEST PAKISTAN
Arbitration Removal of arbitrator on ground of misconduct, application for Question of misconduct is a question of fact to be ascertained from facts of entire proceedings Onus of proof lies on party alleging misconduct Application under S. 11 cannot be disposed of in summary manner relying on bare affidavit of a party Application should be decided after recording evidence and giving arbitrator an opportunity to meet allegations Despite fact that Evidence Act, 1872, not applicable to arbitration proceedings that does not mean that fundamental principles of justice and public policy can be disregarded.
1973 SCMR 98 SUPREME-COURT
AJ-BAG CORPORATION VS PAKISTAN
Ss. 5 & II-Power of Court to remove arbitrator -Appointment of arbitrator and arbitration proceedings taken in absence of a necessary party-Lack legal sanction Authority of arbitrator, in circumstance, held, rightly terminated by Court.
1971 SCMR 121 SUPREME-COURT
PROINCE OF EAST PAKISTAN VS M. AHMAD & SONS
Arbitration Act (X of 1940), Ss. II do 12–Arbitrator, removal of Arbitrator (Superintending Engineer) named under contract for execution of public works, directing his subordinate (Executive Engineer) to settle differences and to pay petitioner contractors their legitimate dues-Direction neither carried out, nor payment of bills made to contractor, nor petitioner-contractor’s subsequent application calling upon Arbitrator to arbitrate attended to-No award, held, made in circumstances and application for removal of arbitrator maintainable under S. 11.
1970 SCMR 319 SUPREME-COURT
PROVINCE OF EAST PAKISTAN VS ABDUR RASHID
Arbitration Act (X of 1940), Ss. 11 & 8(1)(b)-Arbitrator not raking any steps from date he was called to enter upon reference till only four days left In expiry of period of four months for making award-Provision of S. 11 (1) and not S. 8(1)(b) attracted-Court, held, right in removing arbitrator under S. 11.
1970 PLD 69 DHAKA-HIGH-COURT
PROVINCE OF EAST PAKISTAN VS ABDUR RASHID
Arbitration Act 1940 SS. 11 & 39-Arbitrator, removal of-Appeal-Order removing arbitrator passed under S. 11-Not appealable-Appeal however converted into revision in interest of justice in circumstances of case.
1968 PLD 847 LAHORE-HIGH-COURT-LAHORE
MESSRS M. A. AZIZ & SONS VS (1) LT.-.COL. M. DAUD KHAN (2) PAKISTAN THROUGH C. M. E. S.
Arbitration Act 1940 S. 11–Revocation of arbitrator, dismissal of application for-Judge summarily dismissing application and failing to record reasons for holding appointment of arbitrator as valid-Order illegal and without jurisdiction and not “judgment” within meaning of S. 2(9) or O. XX of Civil Procedure Code, 1908-Order set aside in revision under S. 115, C. P. C. and case remanded to lower Court for disposal of application in accordance with law-Civil Procedure Code ( V of 1908), Ss. 2(9), 115 & O. XX.
1968 PLD 680 KARACHI-HIGH-COURT-SINDH
PIR ILLAHI BUK CO-OPERATIVE HOUSING SOCIETY LTD. VS K. B. SANAULLAH AND OTHER
—-Ss. 54-A & 70-A [as inserted by Co-operative Societies (Amendment) Ordinance (XII of 1966)] -and Arbitration Act (X of 1940), S. 11-No inconsistency between provisions of S. 54-A, Co-operative Societies Act, 1925 and S. II, Arbitration Act, 1940-Two d
1967 PLD 175 KARACHI-HIGH-COURT-SINDH
HAROON OIL MILLS VS KOHINOOR COTTON GINNING FACTORY
Arbitration Act 1940 —— Ss. 8, 9, 5 & 11-Appointment of substitute of previously appointed arbitrator-Provision of S. 8 applicable only in case of agreement under which arbitrators are appointed by consent of both parties-Agreement under which each party to appoint its own arbitrator-Attracts provision of S. 9-Appointment of new arbitrator under S. 9-Recourse to Court not necessary-Provision of S. S, no bar to appointment of arbitrator in terms of S. 9(a)-Justification for appointment under S. 9(a)–Death, incapacity, refusal or omission to act should be satisfactorily established-“Neglecting to act” different from “acting negligently”-Arbitrator acting negligently and causing delay-Remedy lies in applying to Court for his removal under S. 11 (1) or for leave under S. S to revoke his authority.
1966 PLD 19 SUPREME-COURT-AZAD-KASHMIR
AZAD J & K GOVERNMENT VS KHAWAJA MUHAMMAD USMAN & CO.
20 read with Ss. 11 & 12Authority of arbitrator named in agreement revoked by Court-Revocation not warranted prior to reference-Court has jurisdiction to appoint another arbitrator after revocation-Award given by subsequent arbitrator not vitiated-Validity of order of reference to second arbitrator can, however, be objected to.