Section 12 : Power of Court where arbitrator is removed or his authority revoked
2023 YLR 527 QUETTA-HIGH-COURT-BALOCHISTAN
PROJECT DIRECTOR UNIVERSITY OF LORALAI VS ZARIF KHAN HUSSAINZAI AND BROTHERS
Ss. 20, 5 & 12—Application to file in court arbitration agreement—Authority of appointed arbitrator or umpire irrevocable except by leave of court—Power of court where arbitrator is removed or his authority revoked—Scope—Unless an arbitrator is not removed by the Court on the application of any party to a reference, a Court cannot remove or substitute an appointed arbitrator.
2023 YLR 527 QUETTA-HIGH-COURT-BALOCHISTAN
PROJECT DIRECTOR UNIVERSITY OF LORALAI VS ZARIF KHAN HUSSAINZAI AND BROTHERS
Ss. 20, 5 & 12—Application to file in court arbitration agreement—Authority of appointed arbitrator or umpire irrevocable except by leave of court—Power of court where arbitrator is removed or his authority revoked—Scope—Court shall make an order of reference to the arbitrator, named by the parties either in the arbitration agreement or in an arbitration clause of a contract—Until the authority of an appointed arbitrator has not been revoked with leave of the Court under S. 5 of the Arbitration Act, 1940, and/or where an appointed arbitrator has not been removed by the Court under S. 12(2) of the Arbitration Act, 1940, a duly named arbitrator cannot be substituted by the Court in proceedings under S. 20 of the Arbitration Act, 1940.
2023 YLR 527 QUETTA-HIGH-COURT-BALOCHISTAN
PROJECT DIRECTOR UNIVERSITY OF LORALAI VS ZARIF KHAN HUSSAINZAI AND BROTHERS
Ss. 8 & 12—Power of court to appoint arbitrator or umpire—Power of court where arbitrator is removed or his authority revoked—Scope—Unless an arbitrator fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award, an appointed arbitrator cannot be removed or substituted—Likewise an arbitrator may be substituted and Court may appoint a new arbitrator where an appointed arbitrator neglects or refuse to act or is incapable of acting or dies—New arbitrator can be appointed by the Court on the application of a party made under subsection (2) of S. 8 & S. 12 of the Arbitration Act, 1940.
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.
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.
2010 YLR 1618 ISLAMABAD
ADAPTIVE SOLUTIONS (PVT.) LTD. VS UTILITY STORES CORPORATION, ISLAMABAD
Ss.12 & 20—De novo arbitration proceedings—Objection application—Arbitrator duly appointed having failed to file the award, applicant submitted an application for revocation of authority of said arbitrator and for appointment of new arbitrator—New arbitrator was appointed for conducting de novo arbitration proceedings on all legal and factual matters pertaining to the agreement—Subsequently applicant submitted an application for taking up the proceedings from the stage where the proceedings were left by the former arbitrator—Applicant had alleged that order passed to the effect that de novo proceeding should be conducted was against the norms of justice, equity and established principles of law and procedure—Applicant had also alleged that order for de novo proceedings was obtained by way of fraud and misÂrepresentation—Said allegation did not find any support from the record as parties as well as their counsel were present before the High Court when order for conducting de novo proceedings by the arbitrator was passed—Order to the effect of recording de novo evidence passed by the arbitrator had never been appealed against by the applicant—Objection raised by the counsel for the applicant to the effect that de novo proceedings could not be ordered by the court, was without any force because the parties themselves had entered into an agreement which was presented before the court and the court had ordered for the same in view of agreement between the parties—No embargo existed in Arbitration Act, 1940 from which it could be inferred that no de novo proceedings could be ordered in a matter under arbitration—Objection application filed by the applicant stood dismissed being devoid of any force.
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
2002 YLR 2687 LAHORE-HIGH-COURT-LAHORE
PERMA CONSTRUCTION (PVT.) LTD VS OBEROI TEXTILES LTD
—Ss. 5, 11, 12 & 20—Revocation of authority of arbitrator and his removal-Respondents appointed a sole arbitrator having ten years standing as Advocate–Petitioners challenged such appointment on the ground that respondents had first to appoint a reti
1998 SCMR 1618 SUPREME-COURT
HITACHI LIMITED VS RUPALI POLYESTER
—-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
1997 MLD 2384 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD YOUSAF VS COMMISSIONER, FAISALABAD DIVISION, FAISALABAD
—-R.5—Law Reforms Ordinance (XII of 1972), S. 3—Arbitration Act (X of 1940), Ss.2(a) & 12—Constitution of Pakistan (1973), Art. 199—Scope–Contractual obligations are not to be determined in Constitutional jurisdiction of High Court—Where stat
1996 SCMR 1013 SUPREME-COURT
PUNJAB PROVINCE VS M/S. HUSSAIN CONSTRUCTION COMPANY LIMITED
Ss. 20 & 12—Constitution of Pakistan (1973), Art. 185(3)—Appointment of arbitrators in terms of agreement between the parties—Terms incorporated in agreement envisaged that two Superintending Engineers were to be appointed as arbitrators—When order for appointment was made, persons so appointed had retired from the service—Validity—Leave to appeal was granted to consider whether persons appointed as arbitrators having retired from service much before the date of appointment as arbitrators, could be so appointed.
1993 CLC 2082 LAHORE-HIGH-COURT-LAHORE
PUNJAB PROVINCE VS HUSSAIN CONSTRUCTION COMPANY LTD.
Arbitration Act 1940 Ss. 12 & 2 (a)—Provisions of agreement between the parties contemplated reference to arbitration of two officers of the petitioner’s department not 1 below the rank of Superintending Engineers—Petitioners, after reference in accordance with agreement was made, applied for revocation of the authority of the arbitrators on the ground that both having ceased to be Superintending Engineers, they could not act as arbitrators in view of the terms of agreement—Validity—At the time when two arbitrators were appointed by the Court. both the persons were in the employment of petitioner with the rank of Superintending Engineer, as such, their appointment was in accord with the terms of the agreement; their subsequent retirement from service was of no consequence and could not denude the arbitrators of their authority to act as such after having been validly appointed.
1990 MLD 261 KARACHI-HIGH-COURT-SINDH
DESIGN GROUP OF PAKISTAN VS CLIFTON CANTONMENT BOARD
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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 MLD 118 KARACHI-HIGH-COURT-SINDH
Syed ZAHIR HUSSAIN VS THE SECETARY COMMUNICATION and WORKS DEPARTMENT,
Arbitration Act 1940 —-Ss.12 & 20–Appountment of sole arbitrator Contract between parties clearly embodying arbitration clause according to which in event of any dispute between parties, matter would be referred to decision of sole arbitrator–High Court thus, accepting application under Ss. 12 & 20 directed appointment of sole arbitrator.
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.
- 12-Arbitrator-When authority of arbitrator appointed according to a provision of agreement revoked with leave of Court or when arbitrator otherwise removed Court has to proceed under S. 12 of Act and it may either supersede arbitration agreement or appoint a sole arbitrator in place of person displaced-No fetter on powers of Court to abide by provisions of arbitration agreement and leave appointment of an arbitrator to authority named therein unless there is intention to contrary, power conferred on a third person to point an arbitrator cannot be exercised again and again-[Arbitrator].
1982 CLC 1830 KARACHI-HIGH-COURT-SINDH
BAGH CONSTRUCTION CO. VS TRUSTEES OF PORT OF KARACHI
Ss. 5 & 12-Arbitration-Revocation .of authority–Arbitration clan providing for reference of dispute to sole – arbitrator to be appointed by Chairman of Port Trust-Project Engineer of defendant Trust (not connected with work in consideration) appointed as sole arbitrator-Neither plaintiffs making complaint against Project Engineer personally nor latter involved in investigation on plaintiff’s report-Held, no substantial ground made out for revoking authority of sole arbitrator and appointing another instead-Held further, no general presumption arises that junior officer in all probability would try to please his senior officer while acting as sole arbitrator.
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).
1980 CLC 541 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD SAFDAR ALI IQBAL VS SHER MUHAMMAD
- 12(2)–Power of appointing Arbitrator according to agreement, held, comes to end as soon as Arbitrator initially appointed.-[Arbitrator].
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.
1966 PLD 19 SUPREME-COURT-AZAD-KASHMIR
AZAD J & K GOVERNMENT VS KHAWAJA MUHAMMAD USMAN & CO.
Arbitration Act 1940 S. 12 read with. S. 2(a)Arbitration agreement-Court revoking authority of named arbitrator and calling upon parties to furnish panel of names for appointment of new arbitrator-Furnishing of such panel of names-Cannot be said to be execution of fresh arbitration agreement between parties.