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Madhya Pradesh High Court · body

2007 DIGILAW 607 (MP)

Devki Leasing and Finance Ltd. v. National Commodity and Derivative Exchange Ltd.

2007-06-11

A.M.SAPRE

body2007
ORDER 1. By filing this writ under Articles 226/227 of Constitution of India, the petitioner seeks to challenge the impugned letter dated 29.1.2007 (Annexure P-12) whereby R-I has informed the petitioner about the appointment of sole arbitrator in Arbitration Case No. NCDEX-51/2006 between petitioner and R-2 (Company) for resolving the dispute which admittedly have arisen between them. The impugned letter reads as under: "Dear sir, Arbitration Case No. NCDEX 51/2006 SGK Commodity Pvt. Ltd. v. Devki Leasing and Finance Limited This is to intimate you that, Mr. VH. Pandya has been appointed as a sole arbitrator in respect of the abovesaid arbitration matter. Kindly note that, the Ist hearing of the abovesaid arbitration matter will be held as per following date, time and venue: Date: February 20, 2007 Time: 4:00 p.m. Venue: National Commodity and Derivatives Exchange Limited Exchange Plaza, C-l, Block G. Bandra-Kurla Complex Bandra (E), Mumbai - 400 051 Yours faithfully, Shilpa Rane Manager - Arbitration and Compliance" 2. The short question therefore that arises for consideration is firstly, whether petitioner as filed under Article 226/227 of Constitution is maintainable? and secondly, whether petitioner can challenge the impugned communication? Notice of this writ was issued to respondent. They are served and duly represented. Return is filed. With the consent of learned counsel for the parties the petition is heard. 3. Heard Shri Vijay Assudani, learned counsel for the petitioner and Shri Atul Gupta, learned counsel for the respondent. 4. Having heard the learned counsel for the parties and having perused the record of the case, I find no merit in this writ which deserves to be dismissed. 5-6. In the first place, the petition does not involve any staturory issue which is capable of being adjudicated in writ or in other words can be made subject-matter of writ under Article 226/227 of Constitution of India. Secondly, what is involved in the writ is purely a contractual matter relating to appointment of arbitrator between the petitioner on the one hand and R-2 on the other hand. Thirdly, the issue relating to arbitration is essentially govern by the provisions of Arbitration and Conciliation Act, 1996 (for short called 'the Act') and hence remedy of both parties lie in invoking the provisions of 'the Act' rather than to take recourse to the provisions of Article 226/227 of Constitution of India. Thirdly, the issue relating to arbitration is essentially govern by the provisions of Arbitration and Conciliation Act, 1996 (for short called 'the Act') and hence remedy of both parties lie in invoking the provisions of 'the Act' rather than to take recourse to the provisions of Article 226/227 of Constitution of India. Fourthly, what ever objection which the petitioner as one of the party to the impugned arbitration proceedings has taken in this writ, the same can be or rather should be raised either before the Arbitrator or after the award is passed as provided in section 16 of the Act. Fifthly, a writ Court cannot become a civil Court or arbitrator for a to adjudicate the contractual dispute which have arisen between the 2 private parties relating to some money transaction. It is neither legally permissible nor possible to undertake any kind of inquiry of this nature and lastly, when petitioner is at liberty under law (the Act) to raise all kinds of objections both on facts and at law either in arbitral proceedings or on its conclusion before the civil Court then in such circumstances no writ can lie and therefore, this Court decline to exercise its discretion in entertaining the writ. 7. Learned counsel for the petitioner placing reliance on certain clauses of bye laws (6.5) and proviso to bye laws I (2) and provision of forward Contract (Regulation) Act contended that writ is maintainable as also the grievance sought to be urged in this writ can be looked into. I do not agree in the light of what I have held supra. A writ cannot be filed as of right. It is an extra ordinary remedy available to a litigant. The writ Court may entertain the writ and may not in its discretion. I in the facts of this case do not consider it to be a fit case to entertain the writ by taking recourse to the powers conferred under Article 226/227 of Constitution of India. Admittedly, no constitutional issues are involved in the writ so also no statutory violation of any provision of law is alleged. In these circumstances, no case is made out to entertain the writ. It is for all these reasons. I do not wish to burden the order by narrating the entire factual controversy raised by the parties in this writ. It is not necessary. In these circumstances, no case is made out to entertain the writ. It is for all these reasons. I do not wish to burden the order by narrating the entire factual controversy raised by the parties in this writ. It is not necessary. It is much less so when parties have remedy to raise their grievance before the appropriate fora at an appropriate stage as observed supra. 8. As consequence, the petition fails and is dismissed but with a liberty as given to petitioner for raising their pleas before appropriate fora at appropriate time.