ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

J.M. No.50 of 2018

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DATE                ORDER WITH SIGNATURES OF JUDGE(S)

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1. For hearing of CMA 13115/18

2. For hearing of CMA 13116/18

Dated: 04.10.2018

Mr. Asim Iqbal for plaintiff.

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1)       Granted subject to all just exceptions.

2)       Barrister Afzal Khan files Vakalatnama of Mr. Rizwan Fais Muhammad on behalf of defendant, which is taken on record.

          Learned counsel for the plaintiff draws Court’s attention to orders passed by this Court in JM 30 of 2015 where for the detailed reasons given therein as the matter was of national interest, the parties were directed to appoint their respective arbitrators within 15 days and proceed with the arbitration as swiftly as possible under Article XII of the agreement. Learned counsel for the plaintiff further submits that in compliance of the said order, through their letter dated 29.03.2017, the plaintiff appointed Mr. Justice (R) Khilji Arif Hussain to proceed with the subject arbitration on behalf of the plaintiff which appointment was accepted by Mr. Justice (R) Khilji Arif Hussain through his letter dated 28.03.2017. Learned counsel states that no such appointment, as mandated by the Court order, ever came from the defendants except through their letter dated 07.03.2018 Annexure P/14 the defendant wrote to Mr. Justice (R) G.H. Malik, requesting him to proceed with the arbitration proceedings. The counsel contends that neither this letter is issued within the period provided of 15 days as mandated by this Court, nor that order could be interpreted to mean that it allowed earlier arbitral proceedings between the parties to get a fresh start, as clearly the order sought appointment of new arbitrators within 15 days from 16.03.2017. The learned counsel further contends that after the said appointment of Mr. Justice (R) G.H. Malik, an order dated 06.08.2018 was passed attached between pages 105 to 107 where these two appointed arbitrators chose to appoint an Umpire at the cost of Rs.4 Million, equally to be shared by both the parties, which scheme was opposed by plaintiffs on the ground that in the circumstances when second party i.e. defendant had failed to appoint an arbitrator within the prescribed period of 15 days from the date of the order dated 16.03.2017 provisions of Section 9(b) of the Arbitration Act, 1940 kicks in where the law permits the arbitrator appointed by either party to act as sole arbitrator. Thus, through the instant application a request is made that the said Arbitration Tribunal be declared null and void as it has been constituted improperly and rather under the provisions of Section 9(b) of the Arbitration Act, 1940 Mr. Justice (R) Khilji Arif Hussain stood to act as sole Arbitrator.

          As the defendant has affected appearance through Mr. Afzal Khan who has filed his Vakalatnama who seeks time to file a considered counter to the instant application for which 15 days’ time is given at his request, however in the interim, the Arbitration Tribunal not to proceed with the matter till the next date of hearing being 24.10.2018.

          Some other lawyer also approached the Bench to file his Vakalatnama for defendant. It is not clear how that is permissible when an earlier Vakalatnama is taken on file, and the counsel has sought time to file a counter. Let a duly authorized officer of the defendant company be present on the next date to explain this initiative.

                                                                   J U D G E