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2010 DIGILAW 1298 (MAD)

S. Murugan v. S. Suganthalakshmi

2010-03-26

M.JAICHANDREN

body2010
Judgment :- 1. This Civil Revision Petition has been filed against the order of the learned Arbitrator, Mr. A. Thyagarajan (Retired District Judge), dated 22.12.2009, made in Miscellaneous Petition No.2 of 2009, in Arbitration Case No.1 of 2009. 2. The petitioner had filed the Miscellaneous Petition No.2 of 2009, in Arbitration Case No.1 of 2009, under Section 16(2) of the Arbitration and Conciliation Act, 1996, praying to reject the claim application of the respondent, on the ground that the arbitrator has no jurisdiction to entertain the same. 3. The learned Arbitrator by his order, dated 22.12.2009, had passed the following order: "In fairness, it is felt that this petition need not be decided on merits at this trail stage and violation of any clause in the agreement and consequent issue of jurisdiction of the Arbitrator can be decided along with other issues while deciding the claim petition and petitioners counter claim on merits. However, the issue with regard to jurisdiction will be decided at the first instance and then the other issues will be decided. With observation this petition is disposed of. No costs." 4. The learned counsel appearing on behalf of the petitioner had stated that the arbitral proceedings had been initiated, in respect of the agreement, dated 3.6.2008, relating to the construction of a house. The respondent in the civil revision petition had made the claim before the learned arbitrator, in Arbitration Case No.1 of 2009. The petitioner had appeared before the arbitrator during the arbitral proceedings, on more than thirty occasions. The petitioner had also filed a counter claim before the learned arbitrator. 5. During the cross examination of the petitioner, during the arbitral proceedings, the petitioner had filed Miscellaneous Petition No.2 of 2009, raising the issue of jurisdiction of the arbitrator. The arbitrator had rightly come to the conclusion that the issue of jurisdiction would be decided, at the first instance, while deciding the claim petition. Aggrieved by the said order, the petitioner has preferred the present civil revision petition before this Court, under Article 227 of the Constitution of India. 6. The learned counsel appearing on behalf of the respondent had submitted that the order of the learned Arbitrator, dated 22.12.2009, made in Miscellaneous Petition No.2 of 2009, in Arbitration Case No.1 of 2009, is correct and it is in accordance with the provisions of the Arbitration and Conciliation Act, 1996. 7. 6. The learned counsel appearing on behalf of the respondent had submitted that the order of the learned Arbitrator, dated 22.12.2009, made in Miscellaneous Petition No.2 of 2009, in Arbitration Case No.1 of 2009, is correct and it is in accordance with the provisions of the Arbitration and Conciliation Act, 1996. 7. He had also brought to the notice of this Court, a decision of a learned Single Judge of this Court, made in V.Shanmughasundaram V. Indian Oil Corporation Ltd. ( 2009(5) CTC 685 ), wherein it had been held that the Civil Revision Petition filed, under Article 227 of the Constitution of India, is not maintainable in such circumstances. The learned Judge had relied on the decision of the Supreme Court in S.B.P. & Co. V. Patel Engg. Ltd. [2005(5) CTC 302 (SC)], wherein it has been held as follows: "44. It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the Arbitral Tribunal appeal able. Under Section 34, the aggrieved party has an avenue for ventilating its grievances against the award including any in-between orders that might have been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the Arbitral Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 of 227 of the Constitution. Such an intervention by the High Courts is not permissible. 45. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 of 227 of the Constitution. Such an intervention by the High Courts is not permissible. 45. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the Arbitral Tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the Arbitral Tribunal, parties have to wait until the award is pronounced unless, of course, a right of Appeal is available to them under Section 37 of the Act even at an earlier stage. 46..... (vi) Once the matter reaches the Arbitral Tribunal or the sole Arbitrator, the High Court would not interfere with the orders passed by the Arbitrator or the Arbitral Tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act. (ix) In a case where an Arbitral Tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the Arbitral Tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the act." 8. In view of the averments made on behalf of the petitioner, as well as the respondent, and in view of the decisions cited supra, the civil revision petition, filed by the petitioner, cannot be held to be maintainable in law. The learned arbitrator, by his order, dated 22.12.2009, had rightly held that the issue of jurisdiction could be decided, at the first instance, while deciding the claim petition. As such, the civil revision petition is devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.