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Miscellaneous Application No.33 of 1983, decided on 29th February,1984.

‑‑‑‑Ss.8 a 20‑‑Appointment of arbitrator by Court‑‑ Non‑co‑operation of parties with arbitrator ‑‑Parties to arbitration agreement appointing A as their arbitrator‑‑A making no award due to non‑co‑operative attitude of parties‑‑Applicant giving notice to respondent under S.8, Arbitration Act, 1940 to concur in appointment of N as arbitrator then applying to court for appointment of N as arbitrator‑‑ Appointment of fresh arbitrator, held, in circumstances was merely an exercise in futility unless parties cc‑operated with him‑‑Application rejected in circumstances.

Ibrahim Peshori for Applicant.

S.Zafar for Respondent.

Date of hearing: 29th February,1984.

This is an application under section 8 of the Arbitration Act; 1940 praying that the Court may be pleased to appoint Mr.Iqbal Hussain Noorani as Arbitrator between the parties to decide the dispute arising between them out of their partnership business.

By an agreement dated 1st January,1974 the parties had agreed to carry on business in partnership. According to clause 14 of this deed the parties had agreed that if there is any dispute between them in respect of partnership business, it shall be referred for decision to a sole arbitrator appointed by the parties.

It appears that, after some time dispute arose between the parties whereupon they appointed Mr.Ali Akbar as arbitrator but he did not give any award. The present applicant then moved an application under section 20 of the Act praying that an arbitrator may be appointed in terms of clause 14 of the partnership deed. On this application, which was registered as Suit No.905/79, consent order was passed by this Court on 16th December, 1979, appointing Haji Ali Akbar as sole arbitrator to decide the dispute between the parties.

This arbitrator started proceeding but was unable to make an award. The present applicant, therefore, made an application to this Court in Suit No.905/79 for removal of Mr.Ali Akba, and appointment of another person as arbitrator. On thi3 application notice was issued to Mr Ali Akbar who gave following statement in writing before the Court:‑

I Ali Akbar H.Ibrahim the arbitrator in the above matter submit that the parties involved in the said case could not come forward with sufficient proof enabling the undersigned to arbitrate the matter."

Upon this statement the Court ordered that the case be consigned to record.

As the clause 14 of the Partnership Deed was still effective, therefore, the applicant gave notice to the respondent under section 8 of the Arbitration Act saying that the applicant has appointed Mr.Iqbal Hussain Noorani as the Arbitrator in pursuance of the said clause 14. The respondents were further required by this notice to concur within 15 days it his appointment as arbitrator failing which application under section would be made to the Court. This notice was issued to the respondent on 19th May,1983, the receipt of which is not denied. As the respondents did not make any reply to this notice, hence the applicant made the present application under section 8 in which following relief has been sought:

"The applicant, therefore, prays that the Honourable Court may be pleased to appoint Mr.Iqbal Hussain M.Noorani, A.C.A., Senior Accountant, Pakistan Petroleum Limited, Karachi as the arbitrator."

I have heard the learned counsel for the parties and perused the record. If statement of the previous arbitrator Mr.Akbar Ali which has been quoted above is relied upon, then appointment of a fresh arbitrator would be exercise in futility. No arbitrator can proceed with arbitration proceedings unless the parties co‑operate with him and produce evidence before him in support of their respective claims. Mr.Akbar Ali had given sufficient opportunity to the parties, in spite of this no evidence was led before him. I have no reason to disbelieve the statement of Mr.Akbar Ali whose appointment was made with the concurrence of the parties. I am satisfied that if any other person is appointed as arbitrator, he shall also not be able to decide the dispute for the same reasons for which Mr.Akbar Ali had failed.

Consequently, it is not possible for. the Court to grant this application. I, therefore, hold that the Arbitration Clause, that is, clause 14 of the Partnership Deed has become impracticable and ineffective and it is declared as such. The parties shall be at liberty to approach Civil Court for appropriate remedy if so advised.

The application stands disposed of accordingly with no order as to costs.

M.B.A. Order accordingly.

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