A. E. S. ORISSA DISTRIBUTION PRIVATE LIMITED v. GRID CORPORATION OF ORISSA LIMITED
2004-07-28
P.K.TRIPATHY
body2004
DigiLaw.ai
P. K. TRIPATHY, J. ( 1 ) THE above noted revision petitioners have filed the three Civil Revisions under Section 115 of the Code of Civil procedure, 1908 (in short, "the Code') as against the judgment of learned District Judge, khurda at Bhubaneswar passed on 15-12-2003 in Arbitration Proceeding No. 293 of 2003. On consent of the parties, all the three civil Revisions have been heard analogously being against the same order and are disposed of by this common judgment. ( 2 ) CENTRAL Electricity Supply Company limited (in short, 'cesco') is a Company of which petitioners and the opposite party No. 1 are shareholders. They entered into an agreement on 31-9-1999 to act as shareholders of CESCO, which had obtained licence for distribution and retail supply of electricity energy Annexure-1 is that agreement. Clause 28-2 of that Agreement provides that the parties irrevocably submit to the appropriate Courts In Orissa. Clause 28-3 provides that any dispute or differences between the GRIDCO and the investor be referred to the Chief Executives of the investor and GRIDCO for resolving the issue amicably by discussion and conciliation, and clause 28. 4 provides that in case of failure in the above respect (as provided In Clause 28. 3), parties are to submit to arbitration in accordance with Arbitration and Conciliation act, 1996 (in short, 'the Act' ). They also agree to in Clause 28. 5 of that Agreement that place of arbitration shall be at bhubaneswar in Orissa. ( 3 ) ADMITTEDLY, a dispute on business has gone to the Arbitration and Opposite Party no. 3 is the Arbitrator nominated by the petitioners, Opposite Party No. 4 was the arbitrator nominated by Opposite Party No. 1 and Opposite Party No. 2 is the Presiding arbitrator appointed on consent of the parties. A dispute raised by Opposite Party No. 1 relating to appointment of Opposite Party no. 2 as the Presiding Arbitrator was set at rest by the Apex Court as per the order, annexure-2. Thereafter Presiding Arbitrator proposed to hold the sittings of the Arbitration at Singapore and other places other than Bhubaneswar, directed the parties to agree for the forums at London, Singapore, or Union Council of Arbitration to provide the secretarial assistance and claimed a fee, which, according to Opposite Party No, 1. is exorbitant and unaffordable and the Presiding arbitrator suo motu noticed the parties to file their counter.
is exorbitant and unaffordable and the Presiding arbitrator suo motu noticed the parties to file their counter. Ventilating their contentions in that respect, Opposite Party No, 1 applied before the District Judge for appropriate order on the mandate of the presiding Arbitrator. After taking stock of the whole facts scenario and the contentions of the parties so also the provision of law in sections 20, 6, 23, 39 and 31 of the Act, learned District Judge passed the impugned order as follows : "order (I) The venue of arbitration shall be bhubaneswar, Orissa as agreed upon by the parties under Clause 28. 5 of the Shareholders agreement, (II) The Secretarial assistance shall be provided to the Arbitral Tribunal by the parties at Bhubaneswar. (ILL) The petitioner may raise objection relating to the notice by the Presiding Arbitrator to the Opposite party Nos. 1, 2 and 3 calling upon them to file counter-claim, if any before the Arbitral Tribunal. (IV) The petitioner shall pay its share of costs relating to journey and other expenses of the Presiding Arbitrator in conducting the arbitration proceeding at the venue of arbitration (Bhubaneswar, Orissa) as agreed upon by the parties. The petitioner may not make any advance payment of fees to the presiding Arbitrator and the Presiding arbitrator will have a lien on the fees from the petitioner in terms of Section 39 of the Act, whereupon the petitioner may take recourse to the provisions of sub-section (2) of section 39. " ( 4 ) MR. Sudipt Sarkar, learned Senior counsel arguing for the petitioners, while re-stating the fact involved in the case and the circumstances as to how Opposite Party no, 3 became the Presiding Arbitrator, also drew attention of this Court to the provision in Sections 5, 14, 20, 31, 37, 38 and 39 of the Act in a lucid manner to emphasize on his submission trmt, learned District judge had no business to pass the above quoted order mandating the manner in which the Arbitrators are tc function when the places of sitting, the fee to be charged and the secretarial assistance to be taken is within the jurisdiction and discretion of the arbitrator.
In reply to the argument of the opposite party No. 1 on the maintainability of the Civil Revisions, he argued that the embargo provided in the proviso to sub-section (1) of Section 115 of the Code is not applicable. He has annexed Xerox copies of citations in support of his contentions. ( 5 ) MR. N. C, Panigrahi, learned Senior counsel appearing for the Opposite party no. 1, argued against maintainability of the civil Revisions in view of amendment of section 115 of the Code by Act 46 of 1999. Al ternatively, he argued that the impugned order of the District Judge having been accepted by the Presiding Arbitrator and he having fixed the sitting at Bhubaneswar, the contention of the petitioners in challenging to the place of sitting at Bhubaneswar is contrary to the clause 28. 5 of the agreement executed by it. He further stated that opposite Party No. 4 is no more the Arbitrator nominated by Opposite Party No. 1. but Mi. Justice P. C. Misra (Retired) is the arbitrator nominated by the Opposite Party No. 1. According to him, whefi the Arbitrators and particularly the Presiding Arbitrator has no objection to sit at Bhubaneswar to take secretarial assistance at Bhubaneswar and to accept the share of fee of the Opposite Party no. 1 by having a lien in terms of Section 39 of the Act, therefore, petitioners cannot have any grievance in that respect when that does not affect them in any manner and more so when such direction of the District Judge are within the bounds of the Agreement executed by the parties to the dispute. Accordingly, he argued to dismiss the revision petitions. ( 6 ) IT is not necessary to make prolonged deliberation on the objection raised by the opposite Party No. 1 on the maintainability of the Civil Revisions in as much as Arbitration Petition No. 293 of 2003 is a proceeding within the meaning of the term 'other proceedings' as provided in Section 115 of the Code and no appeal is provided against the order of the impugned nature. Therefore, the Civil Revision are maintainable against the impugned order.
Therefore, the Civil Revision are maintainable against the impugned order. ( 7 ) COMING ':o the main controversy between the parties on the merit of the impugned order, this Court quite agreed with the argument of the Opposite Party No. 1 that once the petitioners are party to the agreement, Annexure-1, in which Clause 28. 5 provides that the proceedings to be taken up at Bhubaneswar, in that respect petitioners cannot have objection to the decision for taking up of the Arbitral proceeding at Bhubaneswar when the Presiding arbitrator, as per Annexure M/l, has already noticed the parties to consent for a date for the sittings of the Arbitrator at Bhubaneswar so also not disputing to the other observations (as quoted above) in the impugned order relating to remuneration and secretarial assistance. Section 115 of the Code authorizes the. Revisional Court to interfere with an order under challenge in the event of jurisdictional error or illegality, as provided in Clauses (a), (b) and (c) in sub-section (1 ). Keeping in view the facts and circumstances which gave rise to file the application before the District Judge, it is made out that the party who can be said to be aggrieved (if that is so) may be the Presiding Arbitrator and not the petitioners. Since the Presiding arbitrator has no objection, the impugned order is not liable to be interfered with at the instance of the petitioners in view of Clause 28. 5 of the Agreement and that to when no order has been passed prejudicial to the right of the petitioners or contrary to any terms and conditions in the Agreement, annexure-1. Under such circumstance, this court does not find it necessary to analyse the different statutory provisions from the act referred to by the parties at the time of advancing their respective argument or even necessary to refer to the different citations (Xerox copies being appended on record), because, in no such case a peculiar circumstance, which appear in this case, was involved to the effect that the Presiding arbitrator being agreeable to sit at the place in terms of Agreement amongst the parties, one or some of them desire sitting of the arbitrator at some other place (s) contrary to that agreement.
( 8 ) THUS, on analysis of the facts and circumstances, the provision of law vis-a-vis the impugned order, this Court does not find it to be a fit case for interference under section 115 of the Code. Accordingly all the three Civil Revision Petitions are dismissed. Petition dismissed. .