1. This is an application tor removal of the Arbitrator.
2. Under the contract the arbitration was to be by two Arbitrators, one to be appointed by each party. In this case the petitioner did not appoint its Arbitrator because it was then under the impression that the arbitrator had no jurisdiction to deal with the matter in dispute. The result was the arbitrator appointed by the respondent became entitled to act as sole arbitrator. An application was made previously for determination of the scope and effect of the arbitration agreement but counsel for the petitioner did not then press for setting aside the appointment of this arbitrator.
3. The arbitrator in this case is Ramnath Bajoria who is the father of the Managing Director of the respondent company. Having regard to this relationship Ramnath from the beginning had a peculiarly delicate task to discharge as an arbitrator. Every arbitrator is expected to conform to the fundamental rules relating to the administration of justice. Having regard to his special relationship the arbitrator was bound to be very particular and strict in maintaining his judicial and impartial attitude towards both parties.
4. Now, what are the facts in this case? When the examination of witnesses started the petitioner requested the arbitrator to employ a short-hand writer stating that he was prepared to pay the entire costs of such employment if the arbitrator so directed. The arbi-trator ruled at that time that he would not employ any short-hand writer even if the petitioner was prepared to pay the costs. The arbitrator has a discretion and this ruling by itself does not justify his removal. But as yet I see no reason why the arbitrator refused to employ a stenographer. He had of course no power to compel a party who was not agreeable to pay the expenses but he certainly had the power to employ a shorthand writer if one of the parties was prepared to pay the expenses.
5. The evidence in this case seems to be highly technical in nature and there are complicated facts and I have no doubt that numerous witnesses have to be examined. It is almost impossible for any counsel or attorney who is conducting this case to go on with this arbitration unless short-hand notes of the proceedings are taken so that he might refresh his memory day to day and at the time of final argument. Although the witness has given evidence for several hours the arbitrator has not kept any notes of his evidence.
6. The petitioner, therefore, employed a short-hand writer of its own to take down short-hand notes of the evidence. The arbitrator refused to allow the short-hand writer to take down the evidence and excluded him from the room where the meeting, was held. I see no justification for this exclusion. It is said that tine arbitrator may have been under the impression that his previous order was being flouted. I am sorry to hear that explanation. The arbitrator must be intelligent enough to understand what is happening before him. The short-hand writer was brought at the meeting not as the employee of the arbitrator but as the employee of the petitioner. Exclusion of the shorthand writer from the meeting was wholly improper and continued exclusion will result in miscarriage of justice. --'Haigh v. Haigh', (1862) 8 Jur (N. S.) 983(A), is sufficient authority for the conclusion that such exclusion in the circumstances of this case is misconduct on the part of the arbitrator.
7. One of the clerks of the petitioner's attorney was also excluded from the meeting.
8. All the facts taken in conjunction with the special relationship of the arbitrator with the respondent show that the arbitrator is biased in favour of the respondent.
9. I, therefore, remove Ram Nath Bajoria from acting as arbitrator under Section 11, Arbitration Act. In the circumstances it is my duty to appoint another arbitrator. By consent of the parties under Section 12, Arbitration Act I appoint Mr. Birendra Nath Bose, At-torney-at-Law as the sole arbitrator in place of the said Ramnath Bajoria.
10. Having regard to the facts of this case, each party will bear its own costs.