Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 940 (PAT)

Walia Builders v. Bihar State Export Corporation

2007-05-14

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. Petitioner filed application under Sec. 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. It was registered as Request Case No. 13 of 2002. A nominee of Hon ble the Chief Justice, by order dated 3.12.2002, rejected the prayer, inter alia, observing as follows: "xxx Prima facie I do not find any dispute, which can be referred for arbitration. Once the matter has been arbitrated upon then nothing further can be decided by any Arbitrator in relation to the matters which were into existence prior to 1997 or in any case before the final award made by the Arbitrator. The request case is rejected." 2. Aggrieved by the same, petitioner filed C.W.J.C. No. 1155 of 2004 before this Court. I, sitting singly, by order dated 17.8.2004 dismissed the writ petition in limine. Petitioner thereafter filed L.P.A. No. 963 of 2004 before this Court. A Division Bench of this Court, by order dated 15.11.2006, set aside my order passed in the writ petition and remitted the matter back for reconsideration on merit in accordance with law. While doing so, it observed as follows: "xxx From Annexure-7 of the writ application, it appears that correspondence was made by the sole respondent, the Bihar State Export Corporation through the Managing Director addressed to the appellant dated 14.8.2003, clause 12 of which reads as follows: "In case you fail to perform and execute the work in time schedule, any working difficulty, financial liability that may have arisen or will arise due to delay, you yourself will be responsible. If any cost increase of any material occur because of your lack of performance and your delay nobody else other than you will bear the cost." From this stipulation made in the correspondence, as referred to above, it appears that the parties were still in agreement for execution of the work and this being the situation, the appellant was entitled to invoke the arbitration clause of the earlier agreement. Learned counsel for the appellant submits that annexure 7 of the writ application brought on record could not have been ignored. However, we do not find any mention in relation to annexure-7, as referred to above, in the order impugned. Learned counsel for the appellant submits that annexure 7 of the writ application brought on record could not have been ignored. However, we do not find any mention in relation to annexure-7, as referred to above, in the order impugned. In the result, this appeal is allowed, order impugned dated 17.8.2004 passed in C.W.J.C. No. 1155 of 2004 is set aside and the matter is remitted back to a learned single Judge of this Court to re-hear the matter on merit in accordance with law. xxx" 3. This is how the writ application has been posted before me for consideration. 4. Mr. Jitendra Singh, learned Counsel appearing on behalf of the respondents, raises a preliminary objection to the maintainability of the writ petition. He submits that as the order passed by the learned Single Judge in Request Case is a judicial order and subject to appeal only under Article 136 of the Constitution of India before the Supreme Court, the present writ petition is not maintainable. In support of his submission, he has placed reliance on a Seven Judges Bench decision of the Supreme Court in the case of SBP & Co. vs. Patel Engineering Ltd. and Another, (2005)8 Supreme Court Cases 618 [:2006(1) PLJR (SC)74] and my attention has been drawn to paragraph no. 47 (i), (ii), (vii) and (x), which read as follows: "47 (i). The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section. 11(6) of the Act is not an administrative power. It is a judicial power. (ii) The power under Sec. 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court. (vii) Since an order passed by the Chief Justice of the High Court or by the designated Judge of that Court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution to the Supreme Court. (x) Since all were guided by the decision of this Court in Konkan Rly. Corpn. Ltd. vs. Rani Construction (P) Ltd. and orders under. (x) Since all were guided by the decision of this Court in Konkan Rly. Corpn. Ltd. vs. Rani Construction (P) Ltd. and orders under. Sec. 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of Arbitrators or Arbitral Tribunals thus far made, are to be treated as valid, all objections being left to be decided under Section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under Sec. 11(6) of the Act." . 5. Mr. Basant Kumar Choudhary, learned Counsel appearing on behalf of the petitioner, submits that in view of the order passed by the Division Bench in Letters Patent Appeal, the order passed in the Request Case also does not subsist and as such, petitioner is left with no remedy. 6. Having appreciated the rival submission, I find substance in the submission of Mr. Singh and the authority relied on clearly supports his submission. In view of the judgment of the Supreme Court in the case of SBP & Co. (supra), the order passed by the learned Single Judge of this Court in the Request Case is a judicial order and the petitioner has remedy to assail the same in appeal before the Supreme Court under Article 136 of the Constitution of India. 7. As regards the submission of Mr. Choudhary that the order passed in the Request Case shall also be deemed to have been set aside by the Division Bench, is absolutely misconceived. 8. Had the Division Bench done so, there was no occasion to remit the matter back to the Single Judge for rehearing on merit in accordance with law. If I accept Mr. Choudharys submission, which is not worth acceptance, that the order passed in the Request Case does not subsist, he can file another Request Case. I am of the opinion that the only remedy left to. the petitioner is to file appeal under Article 136 of the Constitution of India. 9. In the result, I sustain the preliminary objection of Mr. Singh and hold that this writ petition is not maintainable." 10. It is dismissed accordingly.