Section 5 : Agreement that arbitrators be appointed by third party
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arbitration agreement or in an arbitration clause of a contract—Until the authority of an appointed arbitrator has not been revoked with leave of the Court under S. 5 of the Arbitration Act, 1940, and/or where an appointed arbitrator has not been removed by the Court under S. 12(2) of the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 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.
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.
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.
- 5—Objection regarding inherent jurisdiction of an arbitrator—Such objection was a point of law which could be raised at any stage.
2016 PLD 121 SUPREME-COURT
KARACHI DOCK LABOUR BOARD VS QUALITY BUILDERS LTD.
- 5—Arbitrator appointed in contravention of the Arbitration Act, 1940—Application to court under S.5 of Arbitration Act, 1940 for revoking authority of such arbitrator—Maintainability—Section 5 of Arbitration Act, 1940 spoke of (revoking) the authority of an “appointed arbitrator” hence making valid conferment of authority a pre-requisite for the application of S.5—Application under S.5 of Arbitration Act, 1940 for revoking authority of 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.
2016 PLD 121 SUPREME-COURT
KARACHI DOCK LABOUR BOARD VS QUALITY BUILDERS LTD.
- 5—Misreading/non-reading of facts or law by arbitrator—Power of Court to correct such wrong — Subject to the terms of reference an arbitrator(s) was the judge on both the points of fact and law, which also included the question to determine his own jurisdiction—Where, however, the arbitrator went patently and blatantly wrong on facts, which wrong was inconceivable and incomprehensible in relation to the determination of rights of parties in dispute, such as assumption of non-existing facts or ignoring the facts duly established on the record, which in legal parlance was also called the misreading and non-reading; and especially going wrong on the points of law, the court obviously had the power in its appropriate jurisdiction to correct such a wrong.
2016 PLD 121 SUPREME-COURT
KARACHI DOCK LABOUR BOARD VS QUALITY BUILDERS LTD.
Ss. 5 & 14—Arbitrator appointed invalidly—Award passed without jurisdiction—Conferment of jurisdiction upon the arbitrator should be strictly in line with the letter and spirit of the agreement between the parties and the express provisions of law—Any award passed by an arbitrator who was not appointed in such manner shall be invalid, having been passed by an arbitrator without jurisdiction.
2009 CLC 56 KARACHI-HIGH-COURT-SINDH
Mst. SALMA AFTAB VS Shaikh MUHAMMAD TUFAIL
- 5—Authority of arbitrator, assailing of—Principle—Authority of arbitrator, once appointed can be revoked on an application filed by aggrieved party under S.5 of Arbitration Act, 1940, or by an appeal against order of appointment of arbitrator, if arbitrator has been appointed by court in suit—Objection to appointment of arbitrator cannot be entertained at the time of appeal.
2009 CLC 56 KARACHI-HIGH-COURT-SINDH
Mst. SALMA AFTAB VS Shaikh MUHAMMAD TUFAIL
Ss.5 & 33—Limitation Act (IX of 1908), S.5—Law Reforms Ordinance (XII of 1972), S.3—Intra-court appeal—Arbitration—Object and scope—Filing of objections—Limitation—Condonation of delay—Misunderstanding of law—Mistake of advocate—Appellant did not file objections within a period of thirty days as provided in law and sought condonation of delay on the ground that her advocate had misunderstood the law—Advocate of appellant in affidavit stated that he in good faith waited till the service of notice held good, to file application under S.33 of Arbitration Act, 1940, though the same had been drawn by him many days before the date of filing—Validity—Such reason given for condonation of delay could not be termed as sufficient reason to condone the delay—Objection to set aside the award ought to have been filed within thirty days from the date of service or the date on which information of filing of award was received by party intended to file objection/application to set aside an award—Arbitration was a settlement of controversies by one or more persons, known as arbitrators appointed by parties with an object to curtail period of litigation—Application under S.5 of Limitation Act, 1908, to see whether there was sufficient cause for condonation of delay, the very object for which dispute was referred for arbitration, must be kept in mind–If due to any omission or negligence on the part of anyone same was not filed in time, the delay could be condoned only if sufficient cause was given for not filing objection in time, explaining each day—High Court declined to condone the delay in filing of appeal—Intra-court appeal was dismissed in limine.
2007 YLR 505 KARACHI-HIGH-COURT-SINDH
NAVEED ISHTIAQUE VS S.S. ASSOCIATES (PVT.) LTD. Through Chief Executive
—Ss. 2-A, 5 & 21—Specific Relief Act (I of 1877), Ss.42 & 54—Suit for declaration and permanent injunction—Appointment of arbitrator—Revocation of authority of appointed arbitrator—Application for—Pending suits for declaration and permanent
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 CLC 1949 LAHORE-HIGH-COURT-LAHORE
TARIQ ASLAM SHEIKH TOONI VS HAQ NAWAZ
–S. 33—Civil Procedure Code (V of 1908), O.XXXVII, R.2—Arbitration Act (X of 1940), S.5—Suit for recovery of amount on the basis of promissory note and receipt—Parties, during the course of proceedings, agreed to resolution of their dispute throu
2005 YLR 2709 KARACHI-HIGH-COURT-SINDH
MUJTABA HUSSAIN SIDDIQUI VS SULTAN AHMED
—Preamble, Chaps.II [Ss.3 to 19], III [S.20] & IV [Ss.21 to 25]—Modes of arbitration–Perusal of Arbitration Act, 1940, reveals that there are three modes of arbitration: Arbitration without intervention of Court; Arbitration with intervention of Cour
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–ÂSetting aside of arbitration proceedings—Principle of estoppel–ÂApplicability—Remarks by Trial Court—Petitioner had chosen and appointed arbitrator unconditionally, without any re
2003 YLR 1028 LAHORE-HIGH-COURT-LAHORE
AHMAD KHAN VS Mst. NAZIRAN BIBI
—-Ss. 5 & 21—Revocation of authority of arbitrator appointed with consent of parties—During pendency of appeal against judgment and decree passed by Trial Court, Appellate Court with ‘consent of parties appointed arbitrator nominated by parties for
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
2002 CLC 1015 LAHORE-HIGH-COURT-LAHORE
FEHMEEDA KHANAM VS Messrs NAZIR & CO. (PVT.) LTD.
Arbitration Act 1940 —-S. 5 read with S.33—Application under S.5 of Arbitration Act, 1940, seeking revocation of authority of arbitrator—Trial Court dismissed such application being premature—Validity—Revocation of subsisting authority of an appointed arbitrator could’ be sought only under S.5 of the Arbitration Act—Several circumstances and reasons for seeking such revocation might exist—Trial Court was bound to decide application under S.5 of the Act on its own merits, but equating such application wrongly with that-of an objection under S.33 of the Act, Court had failed to exercise jurisdiction vested in it—High Court set aside the impugned order and remanded the case to Trial Court for its fresh decision within the parameter of S.5 of Arbitration Act, 1940.
2001 YLR 2860 LAHORE-HIGH-COURT-LAHORE
FAZAL MUHAMMAD VS MUHAMMAD ISMAIL
Arbitration Act 1940 —-Ss. 3, 5 & 23—Reference of matter to Referee—Decision of Referee—Decision to be bound by the statement of the Referee was outcome of a contract between the parties who were at liberty to revoke the same before it was acted upon—Where the statement of Referee was not clear, but was ambiguous, then the Court could hold further proceedings in the matter instead of deciding the controversy between the parties on the basis of the statement of the Referee—Case was remanded for decision according to law.
1999 YLR 1673 KARACHI-HIGH-COURT-SINDH
NATIONAL REFINERY LTD. VS ANAUD POWER GENERATION LTD.
Arbitration Act 1940 —-S. 5–Revoking the authority of appointed arbitrator or umpire—Procedure—Such an authority must not be revoked unless there are sufficient grounds for doing so and then too the same can only be revoked by the leave of the Court—On good cause being shown, the Court has jurisdiction to grant such leave and as such it is a discretionary relief—Removal of an arbitrator is a serious matter and it must not be resorted to on flimsy or ephemeral grounds.
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 CLC 243 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD FAZIL VS ABDUL QADIR
Ss.30, 33, 5 & 19—Civil Procedure Code (V of 1908), O.XLIII, R.3–Arbitration proceedings—Rolling back of arbitration proceedings by compromise—Validity—Reference to arbitration was always made through compromise—Arbitration proceedings having once commenced could not be rolled back by superimposing another: compromise and that too, without revoking authority of arbitrators—Scheme of Arbitration Act, 1940 indicated that once award was made, same could be set aside only by determining objection petition in terms of Ss.30 & 33 of the Act or by superseding reference or by revoking authority of arbitrator or when proceedings become void under S.19 of the Act—Any other mode of decision could not be adopted unless authority of arbitrator had been revoked by Court—Judgment and decree of Trial Court on basis of statement of oath of party suffered from vitiative infirmity, therefore, was set aside—Case was remanded to Trial Court for decision in accordance with law.
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
1994 MLD 248 KARACHI-HIGH-COURT-SINDH
RELIANCE CONSTRUCTION CO. VS AGHA KHAN MEDICAL COLLEGE FOUNDATION, KARACHI
Arbitration Act 1940 —S.5—Dispute as to contract for construction of buildings—Jurisdiction and power of arbitrators/umpire to question Architect’s certificate—Arbitration agreement clearly conferred on arbitrators power to open up, review and revise any decision, certificate or valuation of architect—Arbitrators being sole judge of facts and law could review validity of architect’s certificate.
1990 MLD 261 KARACHI-HIGH-COURT-SINDH
DESIGN GROUP OF PAKISTAN VS CLIFTON CANTONMENT BOARD
Arbitration Act 1940 —Ss.5, 8, 11, 12 & 14–Appointment of arbitrator–When a functionary of a party, was by contract nominated and conferred high authority of resolving, disputes inter parties, such nominated arbitrator, who was usually a responsible functionary was expected to show not only signal but model impartiality in resolution of dispute as and when referred to him.
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 1510 SUPREME-COURT-INDIA
SECRETARY TO THE GOVERNMENT TRANSPORT DEPARTMENT, MADRAS VS MUNUSWAMY MUDALIAR
Arbitration Act 1940 —S. 5–Named arbitrator–Removal of–Contract with Government–Superintending Engineer named as arbitrator–Parties submitting to jurisdiction of incumbent at relevant time–Removal of his successor on ground that he being subordinate to Chief Engineer will have bias against contractor not justified.
1989 MLD 2370 LAHORE-HIGH-COURT-LAHORE
MUHAMMAD RAFIQ MADAR ALI VS PROVINCE OF PUNJAB
Arbitration Act 1940 — S. 5–Retirement of arbitrator appointed with official designation from service-Effect–Retirement of arbitrator from service being a post facto event, same, held, could not operate to disqualify him from proceeding with arbitration which he had already embarked upon, especially when -there was no such stipulation made in arbitration agreement.
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 2010 KARACHI-HIGH-COURT-SINDH
MUHAMMAD YASIN VS MUHAMMAD FAROOQ
Arbitration Act 1940 —Ss.2(e), 3, 5, 13 & 14–Jurisdiction of arbitrators–Objection to–Where a party to arbitration agreement allowed arbitrators to proceed with reference submitted to their jurisdiction without objection, led evidence, such party is estopped, from challenging jurisdiction of arbitrator: -[Estoppel].
1987 MLD 2147 KARACHI-HIGH-COURT-SINDH
PAKISTAN INTERNATIONAL AIRLINES CORPORATION VS Messrs SARHAD CONSTRUCTION Co.
Arbitration Act 1940 —Ss.5 & 8(2)–Arbitrator–Appointment by Court–Dispute over execution of contracted construction work–Court by consent order appointing arbitrators of parties–Arbitrators entering upon reference but same was delayed and no progress made on account of conduct of respondent who failed and neglected to file any statement of claim before Arbitrators–Respondent taking premium out of his own failure and neglect appointing sole Arbitrator himself without getting revoked the authority of Arbitrators appointed by Court–Such appointment of sole Arbitrator by respondent, held, was illegal as such power vested in Court and could have been invoked by filing an application under S.8(2)–Authority of sole Arbitrator so appointed was revoked and sole Arbitrator was removed from office–Arbitrators appointed by Court having failed or neglected to make their award within statutory period, matter left to parties to take any other legal course open to them.
1987 CLC 166 KARACHI-HIGH-COURT-SINDH
ABDULLAH VS IQBAL NASEEM
Arbitration Act 1940 —Ss. 30 & 5–Award–Objections for setting aside award–Arbitrator giving award on 15-3-1985 within time prescribed by Court–Defendant moving application on 14-3-1985 under S. 5 before Arbitrator for staying proceedings–Arbitrator who had to complete his work within prescribed time, held, could not without an order from Court, keep whole case pending after having heard parties and after having completed his work.
1986 CLC 2555 KARACHI-HIGH-COURT-SINDH
PAKISTAN REFINERY LTD. VS PAKISTAN NATIONAL SHIPPING CORPORATION
Arbitration Act 1940 Ss. 5, 33 & 37(1)–Taking part in arbitration proceedings without prejudice to objection to such proceedings–Right to object subsequently–Where appointing arbitrator and taking part in arbitration proceedings was without prejudice to objection to invocation of such proceedings on ground of limitation, right of challenging such invocation oaf arbitration clause and proceeding there under, held, would not stand waived.
1986 CLC 644 KARACHI-HIGH-COURT-SINDH
PAKISTAN REFINERY LTD. VS PAKISTAN NATIONAL SHIPPING CORPORATION
Arbitration Act 1940 Ss. 5, 33 & 37(1)–Revocation of authority of arbitrator–Appointing arbitrator and taking part in proceedings–Effect–Such appointment and participation in arbitration proceeding by objectors being without prejudice to their objection on ground of limitation, held, would not amount to waiver in challenging invocation of arbitration clause and proceeding thereunder.
1986 CLC 312 KARACHI-HIGH-COURT-SINDH
WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE VS METROPOLITAN STEEL CORPORATION LTD
Ss. 33, 5, 8 & 9–Arbitration–Respondent main contractors of petitioner for construction of main Civil Engineering Works of project under contract–Another respondent entering into sub-contract with first respondent for supply of Reinforced Steel on terms given in an agreement according to which, in case of dispute, matter was to be referred to arbitration–Petitioner having not signed said agreement thus was not a party thereto–Mere fact that some references had been made to petitioner in a clause of agreement, held, would not make him a party to agreement.
1985 SCMR 401 SUPREME-COURT
WAJID ALI VS SAJID ALI
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1983 CLC 1685 LAHORE-HIGH-COURT-LAHORE
- A. JALIL VS SALAH-UD-DIN KHAN
Ss. 5, 8 & 9-Application under S. 5, 8 or 9 to be filed in Court which has jurisdiction to decide question forming subject-matter of reference if same had been subject-matter of a suit.
1982 CLC 1777 LAHORE-HIGH-COURT-LAHORE
MASOOD HUSSAIN ANWAR VS MUHAMMAD AMIN
__ S. 13 read with Arbitration Act (X of 1940), S. 5-Ejectment application-Reference of dispute to arbitration-Pursuant to parties’ statements during inquiry in application for ejectment, Rent Controller referring dispute for arbitration to arbitrators proposed by parties-Landlord filing objections and application under S. 5, Arbitration Act, 1940 withdrawing from award-Rent Controller rejecting both and making award rule of Court-Held: Reference to arbitration not contemplated in inquiry under section 13-Rent Controller has no jurisdiction to receive award from arbitrator and make same rule of Court — Provisions of Ordinance intended to exclude reference of dispute between landlord and tenant to arbitration,
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.
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 non?completion 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.?[Arbitratorl.
1980 CLC 1854 LAHORE-HIGH-COURT-LAHORE
GHULAM QADIR VS PROVINCE OF THE PUNJAB
——-S. 5–Revocation of authority of appointed arbitrator-y-Name of appointed arbitrator not appearing in original list and surreptitiously added in list of suggested arbitrators—Fact of such arbitrator alone being acceptable to petitioner, suggestiv
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 &
1979 CLC 421 LAHORE-HIGH-COURT-LAHORE
PROVINCE OF THE PUNJAB VS FALAK SHER AWAN
- 5-Revocation of authority of arbitrator–Averments made in application for revoking authority of arbitrator showing very serious nature of allegations and prima facie disclosing fraud and forgeries having been committed-Controversy, in any case, so serious as not capable of being resolved except by allowing parties to prove their respective stands by leading evidence-Disposal of case only on basis of a reply filed by respondent and after hearing arguments, held, beyond comprehension–Case remanded for, disposal after allowing parties to lead their evidence.
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.
1976 PLD 496 KARACHI-HIGH-COURT-SINDH
INTERTRADE LTD KARACHI VS TRADING CORPORATION OF PAKISTAN LTD
- 20(4) ?Filing of agreement and reference to arbitrator?Provision of S. 20(4) refers to arbitrator appointed in agreement?Interpretation that relevant time for agreement of parties to appointment of particular arbitrator is when order of filing of agreement made?Held, inconsistent with express language of provision.[Arbitrator].
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.
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 54 DHAKA-HIGH-COURT
MESSRS M. M. ISPAHANI LTD. VS MESSRS PAKISTAN TRADING COMPANY
Ss. 4, 5 & 33-Arbitrators initially vested with jurisdiction to proceed with case-Mere pendency of another proceeding in civil Court or mere contingency of future happening does not render award null and void.
1960 PLD 10 KARACHI-HIGH-COURT-SINDH
MESSRS HAJI MOHAMMED SHARIF-ATTA MOHAMMED VS MESSRS KHOJA MITHABHAI NATHOO
Arbitration Act 1940 Ss. 5 and 33-Claim under arbitration disputed as barred by time-Whether and when authority of arbitrator can be revoked.
1960 PLD 81 DHAKA-HIGH-COURT
PAKISTAN TRADING COMPANY VS M. M. ISPAHANI, LTD.
Arbitration Act 1940 S. 5-Revocation of authority of arbitrators-Grant of leave-Court’s discretion-Limits. In granting leave under section 5 of the Arbitration Act, 1940 for withdrawal of the authority of the arbitrators, the Court has to exercise its discretion and there are two limits within which discretion is to be exercised : (1) that the Court should not lightly release the parties from their bargain and, (2) that the Court should be satisfied that substantial mis-carriage of justice will take place in the event of ;its refusal to grant the leave.
1958 PLD 221 SUPREME-COURT
MUHAMMAD SAGHIR BHATTI & SONS VS FEDERATION OF PAKISTAN
Arbitration Act 1940 Arbitration Act (X of 1940), S. 5-Appointment of arbitrator cancelled without leave of Court and anew appointment made-Objection not raised before new arbitrator-Objection cannot be entertained in appeal.
1956 PLD 96 SINDH-CHIEF-COURT
FEDERATION OF PAKISTAN VS ABDUL MAJID OPEL
Arbitration Act 1940 —–Ss. 5, 9 and 33-Party repudiating and challenging contract containing arbitration clause, and yet referring dispute to arbitration-Reference revoked.