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2012 DIGILAW 901 (CAL)

NRP Projects Pvt. Ltd. v. Hirak Mukhopadhyay

2012-09-25

Dipankar Datta

body2012
Judgment 1. Challenge in this writ petition is to an order dated April 27, 2012 passed by the sole arbitrator (the first respondent) terminating the arbitral proceedings between the first petitioner and the second respondent (on the ground that the former had not filed its statement of claim within time) as well as order dated May 3, 2012 declining the request of the petitioners to extend the time for filing the statement of claim. A writ of certiorari has been prayed for to quash the impugned orders. 2. The order dated April 27, 2012 reveals that the first respondent by his letter dated February 29, 2012 had informed the first petitioner to file its statement of claim by six weeks. It appeared to him to be surprising that even after lapse of eight weeks therefrom the first petitioner had neither filed the same nor intimated any reason for non-compliance of his direction. Accordingly, he construed it to be a default worthy of attraction of Section 25(a) of the Arbitration and Conciliation Act, 1996 (hereafter the Act) and terminated the arbitral proceedings thereby. 3. The first petitioner responded by issuing a letter dated April 30, 2012. It was alleged therein that the works entrusted to it by the second respondent had been completed four years back and that since the old documents pertaining thereto were lying in various offices, some time was consumed to trace the same. However, the first petitioner was in a position to submit its statement of claim within three weeks and, accordingly, prayed for an extension till May 21, 2012. 4. By the order dated May 3, 2012, the first respondent recorded that the mandate of the arbitrator had terminated and, therefore, he had no authority to consider the prayer of the first petitioner for extension. 5. Mr. Banerjee, learned advocate for the first respondent, raised a preliminary objection to the maintainability of the writ petition. According to him, the first respondent was appointed as arbitrator in terms of the agreement between the parties and since he was under no obligation to perform any public duty, a writ would not lie against him. In support of his submission, Mr. Banerjee placed reliance on the decision of the Supreme Court reported in (2003) 4 SCC 225 (G. Bassi Reddy v. International Crops Research Institute and anr.). In support of his submission, Mr. Banerjee placed reliance on the decision of the Supreme Court reported in (2003) 4 SCC 225 (G. Bassi Reddy v. International Crops Research Institute and anr.). He also placed reliance on the decision of the Supreme Court reported in AIR 2004 SC 1344 : M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., and prayed for dismissal of the writ petition. 6. Mr. Menon, learned advocate appearing for the petitioners contended that the point regarding entertainability of a writ petition challenging an order of an arbitrator terminating arbitral proceedings under Section 25(a) of the Act or an order recalling/refusing to recall an order made thereunder is no longer res integra. Several decisions of different High Courts were relied on in support of such contention. 7. First, he referred to the decision of a learned single judge of the Bombay High Court reported in AIR 1999 Bombay 219 : M/s. Anuptech Equipments Private Ltd. v. M/s. Ganpati Co-operative Housing Society Ltd., Mumbai and ors. It was contended by him that the learned judge upon thread bare consideration of the provisions of the Act was of the opinion that an order terminating arbitral proceedings for default of the claimant to file claim statement under Section 25(a) of the Act would amount to termination of proceedings by an order; that the expressions ‘award’ and ‘order’ are distinct and different; that a civil suit cannot be instituted against an order terminating arbitral proceedings; that the Act does not provide any other remedy to the aggrieved claimant against an order terminating arbitral proceedings; and that the arbitral tribunal is comprehended within the meaning of ‘person’ in Article 226 of the Constitution to whom a writ would go; and hence, the orders impugned were set aside on the principle that no man should be left without a remedy. 8. Thereafter, Mr. Menon referred to the decision of a learned single judge of the Patna High Court reported in AIR 2004 Patna 33 : M/s. Senbo Engineering Ltd. v. State of Bihar & ors. He contended that the learned judge in respectful agreement with the decision in M/s. Anuptech Equipment (supra) answered the first question that had arisen for a decision, recorded in paragraph 3 of the judgment, in the affirmative. 9. Next, Mr. He contended that the learned judge in respectful agreement with the decision in M/s. Anuptech Equipment (supra) answered the first question that had arisen for a decision, recorded in paragraph 3 of the judgment, in the affirmative. 9. Next, Mr. Menon referred to the decision of the Delhi High Court, reported in 2005 (124) Company Cases 45 : Indian Oil Corporation Ltd. v. ATV Projects India Ltd. and anr. There, a writ petition against an order of the arbitrator recalling an order terminating proceedings for default of the claimant under Section 25(a) of the Act was held to be maintainable. 10. Finally, Mr. Menon relied on the decision of a learned single judge of the Gujarat High Court reported in MANU/GJ/0329/2005 : Saurashtra Chemicals Ltd. and ors. v. Hon’ble Mr. Justice K. Ramamoorthy (Retd.). He contended that upon consideration of a host of decisions, the learned judge was of the firm opinion that an arbitral tribunal discharges inherent judicial functions of the State and that a writ petition would be maintainable against its order. 11. Mr. Menon made reference to two other decisions in this connection, where the High Courts did not dismiss the writ petitions on the ground urged by Mr. Banerjee. 12. The first one is the decision of a learned single judge of the Andhra Pradesh High Court, reported in MANU/AP/0585/2003 : N. Jayalaxmi v. R. Veeraswamy, and the other being a Division Bench decision of the Bombay High Court reported in MANU/MH/0355/2010 : Rashtriya Chemical Fertilizers Ltd. and anr. v. J.S. Ocean Liner Pte. Ltd. and ors. 13. The writ petition that was being considered by the learned judge in N. Jayalaxmi (supra) was directed against an order of the arbitrator extending time to file statement of claim to the claimant, whereas in Rashtriya Chemical Fertilizers (supra) the petitioners sought for order or direction declaring that the arbitral proceedings between the parties stands terminated and that the arbitral tribunal ceased to have jurisdiction over the disputes with further prayer to quash certain orders. 14. Mr. Menon contended that in view of the settled law that a writ petition is maintainable against orders passed by arbitral tribunals, Their Lordships of the Andhra Pradesh and Bombay High Courts proceeded to decide the controversy that had arisen in the respective writ petitions on merits instead of dismissing the same on the ground of maintainability. 15. Mr. 14. Mr. Menon contended that in view of the settled law that a writ petition is maintainable against orders passed by arbitral tribunals, Their Lordships of the Andhra Pradesh and Bombay High Courts proceeded to decide the controversy that had arisen in the respective writ petitions on merits instead of dismissing the same on the ground of maintainability. 15. Mr. Menon further urged that writ petitions have been consistently entertained by various High Courts against orders of arbitrators in course of arbitral proceedings wherefor the Act does not provide any remedy and hence this Court may consider following the same. 16. The decisions of the Supreme Court reported in AIR 1963 SC 874 : Engineering Mazdoor Sabha v. Hind Cycle Ltd. and AIR 1976 SC 425 : Rohtas Industries Ltd. v. Rohtas Industries Staff Union, which had been considered by the learned judge while coming to the conclusion recorded in M/s. Anuptech Equipments (supra), were placed by Mr. Menon. 17. The decision of the Constitution Bench of the Supreme Court reported in (2005) 8 SCC 618 : SBP & Co. v. Patel Engineering Ltd. & anr. was also cited by Mr. Menon. Drawing the Court’s attention to paragraph 45 and sub paragraph (vi) of paragraph 47 of the decision, he contended that interference by the High Courts under Article 226 and Article 227 were deprecated in respect of orders passed during the arbitral proceedings, and not in respect of orders terminating the same. This, according to him, provides support to the contention that a writ petition against an order terminating the arbitral proceedings would be maintainable. 18. On the scope of jurisdiction the High Court exercises under Article 226 of the Constitution, reliance was placed by Mr. Menon on the decisions of the Supreme Court reported in 1989 (2) SCC 691 : Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and ors. v. V.R. Rudani and AIR 1999 SC 753 : U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey. 19. Also, reference was made to paragraph 30 of the decision of the Supreme Court reported in (2004) 4 SCC 714 : State of Uttar Pradesh v. Johri Mal where, according to him, it has been recognised that the power of judicial review could be exercised, inter alia, even in respect of a decision of an arbitrator. 20. 19. Also, reference was made to paragraph 30 of the decision of the Supreme Court reported in (2004) 4 SCC 714 : State of Uttar Pradesh v. Johri Mal where, according to him, it has been recognised that the power of judicial review could be exercised, inter alia, even in respect of a decision of an arbitrator. 20. The full text of the judgment of a Division Bench of this Court, reported in AIR 2007 (NOC) 1715 : Bharat Sanchar Nigam Limited & Ors. v. BMW Industries Ltd. & ors. was placed wherein it was held that provisions of Section 5 of the Act cannot oust or take away and/or abridge the power of the writ court and it cannot be pressed into operation to stall writ proceedings in an appropriate case. 21. In course of argument, Mr. Menon further relied on another decision reported in MANU/MH/0533/2001 : Dilnawaz Kohinoory and ors. v. Boman Kohinoor and ors. The learned Judge who decided M/s. Anuptech Equipments (supra) also rendered this decision. Law laid down therein is to the effect that a second request for appointment of an arbitrator under Section 11 of the Act would not be maintainable till such time an order under Section 25(a) of the Act passed by an arbitrator in arbitral proceedings initiated earlier between the same parties were set aside. He sought to draw inspiration therefrom to contend that in law, a fresh request to the second respondent for appointment of an arbitrator again to resolve the disputes and differences between the first petitioner and the second respondent is barred. 22. M.D. Army Welfare Housing Organisation (supra) was sought to be distinguished by him by submitting that the Supreme Court was considering the Arbitration Act, 1940 (hereafter the 1940 Act) and any law laid down in respect thereof may not apply to proceedings under the Act ex proprio vigore. For the same reason, he contended that the decision of the Supreme Court reported in AIR 2005 SC 214 : Dharma Prathishthanam v. Madhok Construction Pvt. Ltd. is distinguishable. 23. Mr. Menon, accordingly, submitted that the writ petition ought to be held to be maintainable. 24. The Court had adjourned hearing on August 2, 2012 to enable Mr. For the same reason, he contended that the decision of the Supreme Court reported in AIR 2005 SC 214 : Dharma Prathishthanam v. Madhok Construction Pvt. Ltd. is distinguishable. 23. Mr. Menon, accordingly, submitted that the writ petition ought to be held to be maintainable. 24. The Court had adjourned hearing on August 2, 2012 to enable Mr. Menon trace any decision either of the Supreme Court or this High Court holding the view that the State’s judicial function is being discharged by an arbitral tribunal, as defined in Section 2(1)(d) of the Act. 25. On the next day, Mr. Menon cited a decision of a learned judge of this Court reported in 2003 (4) R.A.J. 571 (Cal) : Unik Accurates Pvt. Ltd. v. Sumedha Fiscal Services Ltd. His Lordship, considering the provisions contained in Sections 17 and 36 of the Act, formed an opinion that the Act has conferred upon an arbitral tribunal inherent judicial power of the State. It was held therein that an arbitral tribunal, which is subject to supervision of a principal civil court of original jurisdiction in a district or of the High Court in exercise of ordinary original jurisdiction, would come within the purview of the High Court’s power of superintendence under Article 227 of the Constitution since it is a tribunal within the meaning thereof. 26. If indeed the decision in Unik Accurates (supra) lays down the law correctly, the petitioners are not without a remedy and the decision in M/s. Anuptech Equipments (supra), insofar as it holds that a claimant aggrieved by an order of an arbitrator under Section 25(a) of the Act can only approach the High Court under Article 226 of the Constitution, must be held not to have laid down the law correctly. Should this Court hold so, the petitioners may assail the orders of the first respondent impugned herein before the learned judge(s) of this Court invested with the power to exercise revisional jurisdiction under Article 227 of the Constitution. In fact, Mr. Menon submitted that the petitioners would be satisfied if it is held while disposing of this writ petition that the orders impugned herein could be assailed under Article 227 of the Constitution before this Court. 27. That would be the easy way out. In fact, Mr. Menon submitted that the petitioners would be satisfied if it is held while disposing of this writ petition that the orders impugned herein could be assailed under Article 227 of the Constitution before this Court. 27. That would be the easy way out. However, being wary of the importance of the issue involved in this writ petition, this Court proposes to examine the worth of the rival contentions and to decide what could be the appropriate order on facts and in the circumstances. 28. Whether an order under Section 25(a) of the Act can be challenged before a High Court in a petition under Article 226 of the Constitution is the basic issue that arises for an answer on this writ petition. 29. To answer the issue, first, it would have to exercise the consideration of the Court as to whether the decisions in M/s. Anuptech Equipment (supra), M/s. Senbo Engineering (supra), Indian Oil Corporation (supra) and Saurashtra Chemicals (supra) lay down the law correctly and hence ought to be followed. 30. In M/s. Anuptech Equipments (supra), the learned Judge was considering an arbitration petition whereby jurisdiction of the learned judge, invested with the determination to hear matters pertaining to Arbitration Acts, was sought to be invoked under Sections 12(3)(b), 13, 14, 15, 24 and other provisions of the Act (see paragraphs 3 and 4). In paragraph 18 of the judgment, His Lordship recorded a finding that Sri D.A. Limaye “could not have sat on the Tribunal as he did not have the qualification for being appointed”. Paragraph 20 of the judgment records that “(I)t is true that in the normal assignment of works petitions under Article 226 of the Constitution would not have ordinarily come to this Court”. However, since matters pertaining to Arbitration Acts had to be decided by that Bench and in view of the conclusion that a writ can go to an arbitral tribunal “being other person”, orders were passed making the rule absolute and quashing the orders mentioned in sub paragraph (i) thereof. 31. A Division Bench of this Court in its decision reported in AIR 1990 Cal 168 : Sohan Lal Baid v. State of West Bengal and ors., ruled that it is for the Chief Justice of a High Court to allocate judicial business amongst the judges of such Court, and that an adjudication beyond allocation would be void. 32. 31. A Division Bench of this Court in its decision reported in AIR 1990 Cal 168 : Sohan Lal Baid v. State of West Bengal and ors., ruled that it is for the Chief Justice of a High Court to allocate judicial business amongst the judges of such Court, and that an adjudication beyond allocation would be void. 32. The said decision has been approved by the Supreme Court in its decision reported in (1998) 1 SCC 1 : State of Rajasthan v. Prakash Chand. It has been held there as follows: “23. The above opinion appeals to us and we agree with it. Therefore, from a review of the statutory provisions and the cases on the subject as rightly decided by various High Courts, to which reference has been made by us, it follows that no Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from it can be permitted. If every Judge of a High Court starts picking and choosing cases for disposal by him, the discipline in the High Court would be the casualty and the administration of justice would suffer. No legal system can permit machinery of the Court to collapse. * * *” 33. It is noted that the decision reported in (2008) 3 SCC 542 : Divine Retreat Centre v. State of Kerala has followed the decision in Prakash Chand (supra) and a note of caution has been sounded, reading as follows: “70. Institution's own reputation is a priceless treasure. History teaches us that the independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility to resolve the issues which are otherwise not entrusted to them by adopting procedures which are otherwise not known.” 34. With the deepest of respect for the learned judge who decided M/s. Anuptech Equipments (supra), this Court wonders whether His Lordship (not being invested with the authority to hear a writ petition, and having formed an opinion that the Act did not provide a remedy for challenging the orders impugned) could have passed an order in the nature of Certiorari on an arbitration petition. To the mind of this Court, in the light of what have been laid down in Sohanlal Baid (supra), Prakash Chand (supra) and Divine Retreat Centre (supra), the said decision in M/s. Anuptech Equipments (supra) is eroded of its efficacy as an authority on the point it decided. 35. However, there are other reasons for which this Court is unable to agree with the view expressed in the decision in M/s. Anuptech Equipments (supra) and discussion on the same shall follow a little later after the decisions that have been relied on by Mr. Menon are considered. 36. It is noticed from the decision in M/s. Senbo Engineering (supra) that the issue therein was the same under consideration in this writ petition. The contention on behalf of the petitioner raised by learned counsel that the Act did not provide any remedy against an order passed by the arbitral tribunal terminating the arbitral proceedings under Section 25(a) and that the only remedy available to an aggrieved party against such an order was to file a writ petition under Article 226 of the Constitution was not disputed by learned counsel appearing for the respondents. The decision in M/s. Anuptech Equipments (supra) was placed before the learned judge, with which His Lordship respectfully agreed. Relying on a portion of paragraph 17 of the cited decision, the first question that was formulated was answered in the affirmative. It follows, therefore, that the learned judge himself did not assign any independent reason for coming to the conclusion that a writ petition under Article 226 would be maintainable against an order passed by the arbitral tribunal under Section 25(a) of the Act. 37. That the learned judge in M/s. Anuptech Equipments (supra) was not considering a challenge to an order passed under Section 25(a) of the Act in writ proceedings and the contents of paragraph 20 referred to above could have escaped the notice of His Lordship while deciding M/s. Senbo Engineering (supra). This Court, most humbly and respectfully, is thus unable to hold the view that the decision in M/s. Senbo Engineering (supra) is an authority on the issue. 38. In Indian Oil Corporation (supra), the objection to the maintainability of the writ petition was founded on the four grounds urged in the counter-affidavit of the claimant, referred to in paragraph 11 of the decision. 38. In Indian Oil Corporation (supra), the objection to the maintainability of the writ petition was founded on the four grounds urged in the counter-affidavit of the claimant, referred to in paragraph 11 of the decision. The learned judge answered the question of maintainability of the writ petition in the affirmative overruling the said four grounds. The ground on which the maintainability of this writ petition has been objected to was not raised before His Lordship. Based on the reasons assigned in such decision, it is difficult to opine that a writ petition against an order of an arbitrator terminating arbitral proceedings under Section 25(a) of the Act is maintainable. 39. In Saurashtra Chemicals (supra), the first of the three questions that were formulated by the learned judge related to the point of maintainability of a writ petition against an interlocutory order and/or order passed by a sole arbitrator under the provisions of the Act. In paragraph 10.1 of the decision, the learned judge ruled that a writ petition would be maintainable against an order passed by an arbitral tribunal. According to His Lordship, an arbitral tribunal is required to adjudicate upon the civil rights of the parties and in the process discharges judicial functions. Reference was made to Section 36 of the Act ordaining that an arbitral award can be enforced as if it were a decree of court. Contents of the last sub-paragraph of paragraph 9.1 contain discussions why His Lordship was of the view that an arbitral tribunal discharges judicial function. One of the reasons assigned in support thereof requires to be noted. Considering the provision in sub-section (5) of Section 27 and the absence of like provision in the Arbitration Act, 1940 (hereafter the 1940 Act), it was observed that “Once a person can be punished for contempt of the Tribunal, which can be done where the Act tends to bring the administration of justice into disrespect or interference with the administration of justice, shows that such a ‘Tribunal’ discharges the inherent judicial functions of the State”. 40. Sub-section (2) of Section 43 of the 1940 Act is pari materia sub-section (5) of Section 27 of the Act. Therefore, sub-section (5) of Section 27 is effectively not a provision that is something new. It was there in the 1940 Act and is also there in the Act. 40. Sub-section (2) of Section 43 of the 1940 Act is pari materia sub-section (5) of Section 27 of the Act. Therefore, sub-section (5) of Section 27 is effectively not a provision that is something new. It was there in the 1940 Act and is also there in the Act. That apart, the arbitral tribunal is not clothed with the power to punish anyone for contempt of itself which a court is empowered to exercise. One of the vital attributes of discharge of judicial functions of the State is the empowerment to punish for contempt, which has not been conferred on an arbitral tribunal. That apart, it is clear on a reading of Section 36 of the Act that though an unchallenged award or sustained award of the arbitral tribunal would be final and binding on the parties to the dispute, it would have to be enforced in the same manner as if it were a decree under the Code. The power of enforcement is that of the court and the arbitral tribunal has no power to enforce its award. With great respect, this Court is unable to share the view expressed in Saurashtra Chemicals (supra). 41. In N. Jayalaxmi (supra) and Rashtriya Chemical Fertilizers (supra), the point that a writ petition would not lie against the orders impugned in the writ petitions was not canvassed and hence Their Lordships did not have the occasion to decide it. Merely because the writ petitions were entertained and dismissed on merits is no ground to hold that this writ petition is maintainable. 42. A Constitution Bench of the Supreme Court (supra) rendered the decision in SBP & Co. (supra). The point for consideration was the nature of the function of the Chief Justice or his designate under Section 11 of the Act. Per majority, it was held that the power exercisable by the Chief Justice thereunder is not an administrative but a judicial power. The issue before this Court did not crop up for consideration. The opinion of the majority does not lay down any law in support of the contention raised by Mr. Menon and, thus, the said decision is of no help to him. 43. The passage in the decision in Johri Mal (supra) to which attention of the Court has been invited does not also lend any assistance to Mr. Menon. The opinion of the majority does not lay down any law in support of the contention raised by Mr. Menon and, thus, the said decision is of no help to him. 43. The passage in the decision in Johri Mal (supra) to which attention of the Court has been invited does not also lend any assistance to Mr. Menon. The expression ‘arbitrator’ has not been used referring to an arbitrator appointed in terms of the arbitration agreement between the parties. 44. Besides the same, the decisions in Engineering Mazdoor Sabha (supra) and Rohtas Industries (supra) laid down the law that an arbitrator appointed in terms of the provisions contained in Section 10A of the Industrial Disputes Act is a statutory arbitrator and its decision would be subject to judicial review by a Writ Court on the premise that such an arbitrator is a person performing public duty. On the basis of the said reasoning, the decision in Johri Mal (supra) has to be read and understood. 45. The decision in Bharat Sanchar Nigam Limited (supra) is clearly distinguishable. The appellant before the Division Bench had refused to make certain payments, which was subjected to challenge in a writ petition. A point regarding entertainability of the writ petition was raised on the ground that an arbitration clause is embodied in the contract itself and in view thereof the learned judge ought to have dismissed the writ petition. It appears therefrom that Section 5 of the Act was referred to in support of the contention on behalf of the appellant that a writ petition is not maintainable, if there exists scope for referring the parties to the dispute to arbitration in terms of the agreement executed by and between them. It was in the context of such a contention that was raised on behalf of the appellant that the Division Bench observed that Section 5 of the Act could not abridge the power of the Writ Court. The decision was rendered at a stage when there was no reference of dispute to arbitration and, therefore, has no manner of application in the facts and circumstances of the present case. 46. The decision in Chandra Bhan Dubey (supra) is the other decision that needs consideration. The decision was rendered at a stage when there was no reference of dispute to arbitration and, therefore, has no manner of application in the facts and circumstances of the present case. 46. The decision in Chandra Bhan Dubey (supra) is the other decision that needs consideration. One of the issues before the Supreme Court was whether the appellant Bank could be regarded as an instrumentality of the State and thus amenable to the writ jurisdiction of the High Court. Mr. Menon placed paragraph 26 of the decision in support of his submission. The first sentence of paragraph 26 answers the issue that arose for decision. However, certain observations were made thereafter. Referring to the definition of ‘person’ appearing in the General Clauses Act, it was held that “(W)hen any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual”. This sentence cannot be considered in isolation to say that a writ would lie against any individual. That individual must be obliged to perform a public duty, as explained in the other decisions referred to above, so that it could be amenable to the writ jurisdiction. However, this Court would note that the passage in Chandra Bhan Dubey (supra) on which reliance was placed by Mr. Menon has been doubted by the Supreme Court itself in the record of proceedings reported in (2001) 10 SCC 461 : Ramchandra Govind Dongre v. Indian Hume Pipe Co. Ltd. and anr. It would thus not be proper to hold this writ petition to be maintainable in view of Chandra Bhan Dubey (supra). 47. Though the Supreme Court in its decision in Dharma Prathishthanam (supra) was considering an appeal arising out of the 1940 Act, it was held therein in general terms that the Law of Arbitration does not make the arbitration an adjudication by a statutory body but it only aids in implementation of the arbitration contract between the parties which remains a private adjudication by a forum consensually chosen by the parties and made on a consensual reference. 48. One finds similar view taken by the Supreme Court in M.D. Army Welfare Housing Organisation (supra). 49. 48. One finds similar view taken by the Supreme Court in M.D. Army Welfare Housing Organisation (supra). 49. In G. Bassi Reddy (supra), the Supreme Court in paragraph 28 held that a writ under Article 226 could lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty. It was further held that although it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity, and that a service voluntarily undertaken cannot be said to be a public duty. 50. In V.R. Rudani (supra), as Mr. Menon rightly contends, it has been held that “any person or authority” used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State but they may cover any other person or body performing public duty; the form of the body concerned is not relevant, it is the nature of the duty imposed on the body that is relevant. 51. Discharge of a public duty by a person for his amenability to the writ jurisdiction of the High Court under Article 226 of the Constitution is thus emphasised by the said decisions. 52. Reiteration of the same principle is found in a decision of the Supreme Court of recent origin, reported in (2010) 8 SCC 329 : Shalini Shyam Shetty and anr. v. Rajendra Shankar Patil. It has been ruled by the Supreme Court as follows: “51. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either the Government, governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. 54. Subsequently in some other cases question arose whether writ will lie against a private person. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. 54. Subsequently in some other cases question arose whether writ will lie against a private person. In Engg. Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874 , it was held that an arbitrator appointed under Section 10-A of the Industrial Disputes Act is not a private arbitrator even though he cannot be equated with a tribunal to be amenable under Article 136 of the Constitution of India. The Court held that in discharging his duties as an arbitrator, the arbitrator is clothed with some trappings of a court and a writ of certiorari would be maintainable against him. So even though an arbitrator, acting under Section 10-A of the Industrial Disputes Act, is a private individual, he discharges public function. So the ratio in the Constitution Bench decision in Engg. Mazdoor Sabha is consistent with the decision in Sohan Lal, AIR 1957 SC 529 . 55. It is only a writ of habeas corpus which can be directed not only against the State but also against a private person. Hidayatullah, J. (as His Lordship then was) on behalf of a Bench of this Court stated the principle as ‘the writ of habeas corpus issues not only for release from detention by the State but also for release from private detention’. (See Mohd. Ikram Hussain v. State of U.P., AIR 1964 SC 1625 .) 56. In Rohtas Industries Ltd. v. Staff Union, (1976) 2 SCC 82 , this Court held that in view of the amendment of the Industrial Disputes Act, 1947, by Amendment Act 36 of 1964 and in view of the provisions like Section 27 of the Act, an arbitrator under Section 10-A of the Industrial Disputes Act is virtually a part of the State's sovereign dispensation of justice and his award is amenable to review under Articles 226 and 227 of the Constitution. In Rohtas, the ratio of Engg. Mazdoor Sabha was followed. 57. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty. 58. In Rohtas, the ratio of Engg. Mazdoor Sabha was followed. 57. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty. 58. In the instant case none of the above features are present, even then a writ petition was filed in a pure dispute between landlord and tenant and where the only respondent is the plaintiff landlord. Therefore, the High Court erred by entertaining the writ petition. However, the petition was dismissed on merits by a rather cryptic order.” 53. One has, therefore, to consider whether an arbitrator appointed in terms of a contract between the parties (notwithstanding that one of the parties could be a State within the meaning of Article 12 of the Constitution and the arbitrator a public servant) discharges a public duty or not. Such duty or function must be similar to or closely related to those, which the State ought to perform in its sovereign capacity. It is no doubt true that an arbitrator appointed in terms of an agreement between the parties wears the hat of an adjudicator but in order to hold that such an adjudicator is discharging public functions or performing public duty, the test that is to be applied is whether he discharges the judicial functions of the State that is so inextricably connected with its sovereign character. Drawing inspiration from Hind Mazdoor Sabha (supra), this Court observes that apart from the importance of “trappings of Court”, the basic and essential condition for regarding a body as being invested with the State’s judicial power is that it must be constituted by the State for adjudication of disputes that are presented before it. 54. Arbitration is a process, which does involve adjudication of disputes. However, it is either preceded by a consensus between the parties to a contract as to who would be appointed an arbitrator and by whom, should disputes or differences arise between them, or by approaching the Chief Justice for appointment of an arbitrator, if the pre-conditions therefor are satisfied. The arbitrator, once appointed in either of two ways, must regulate the proceedings before him in accordance with such procedure that the parties to the dispute agree. The arbitrator, once appointed in either of two ways, must regulate the proceedings before him in accordance with such procedure that the parties to the dispute agree. If they are not ad idem as regards the procedure, the arbitrator is free to adopt a procedure that is fair and reasonable, meaning thereby that he ought to bear in mind the rules of natural justice before passing his award. The Code of Civil Procedure (hereafter the Code) and the Evidence Act, the Act says, would not bind an arbitrator. It is true that in terms of Section 11 of the Act, the Chief Justice or the judge designated by him is empowered to appoint an arbitrator and that such an order of appointment is a judicial order, but little turns on it. In an arbitral dispute, a third party appointed as an arbitrator (with or without the intervention of the judicial process) volunteers to decide the dispute. Any person not willing to act as an arbitrator may well politely refuse. He is under no compulsion to act as such, even though the Chief Justice may have appointed him. However, once an arbitrator takes up the assignment, he is not paid from the public exchequer (unless of course the State itself is a party to the dispute). The parties to the dispute bear his fees. The State, when it is a party to the arbitral dispute, sheds its identity as ‘State’ and is treated as any other ordinary claimant/respondent. Similarly, a public servant acting as an arbitrator in an arbitral dispute involving the State assumes the role of an adjudicator and must act neutrally. Payment of fees of the arbitrator by the State from the public exchequer does not give the latter an exalted status before him. 55. Be that as it may, arbitral proceedings, as and when the same commence even after the exercise of naming an arbitrator by the Chief Justice or his designate, do not partake the character of judicial or quasi-judicial proceedings in the sense that the arbitral tribunal or the arbitrator continues to function as a private adjudicator as distinguished from a public adjudicator. The arbitral tribunal continues to be a forum born as a result of an arbitration agreement between the disputing parties, and the proceedings still remain a process of dispute resolution created by the parties who are at loggerheads, and are viewed as an alternative to adversarial proceedings in a court of law. Merely because one is appointed as an arbitrator by the Chief Justice or the designated judge and volunteers to decide a dispute or difference that has arisen between two parties, it cannot by any stretch of imagination be held that he performs an official or statutory duty or that the State’s judicial function has been delegated to him. The Chief Justice is himself a delegate of the State and discharges the judicial functions of the State. He does not delegate judicial functions to an arbitrator or arbitral tribunal. As has been ruled in SBP & Co. (supra), constitution of an arbitral tribunal by the Chief Justice does not alter the status of the former and it would still be a forum chosen by the parties by agreement. On the contrary, a person who is appointed by the State, say as a judge of a court of law or as a presiding officer of a tribunal, acts as the delegate of the State and the parties to the dispute have no say in the matter of his appointment. Ordinarily, he has no discretion to choose between matters/cases that arise before him for decision. Keeping in mind the principle nemo debet esse judex in propria causa, such an adjudicator may recuse himself from a particular matter/case but not otherwise. It needs no reiteration that an arbitral tribunal cannot be considered to be a forum constituted by the State. Hence, this Court regrets its inability to concur with the decisions of the various High Courts holding that an arbitral tribunal discharges judicial functions of the State and hence a writ petition is maintainable against its order. 56. The view taken in M/s. Anuptech Equipments (supra), followed in M/s. Senbo Engineering (supra), that the Act does not provide any remedy against an order under Section 25(a) of the Act and hence a writ petition would be maintainable does not appeal to this Court to be sound at all. The remedy provided by Article 226 of the Constitution is not a panacea for all ills. The remedy provided by Article 226 of the Constitution is not a panacea for all ills. If indeed any situation occurs where an aggrieved party is left without a remedy, it is for the legislators to take care of the agony of the party by providing an appropriate remedy. Law in respect of maintainability of a writ petition against any ‘person’ is too well settled and needs no reiteration here. 57. This Court, therefore, holds that the first respondent, who was appointed to arbitrate in respect of disputes and differences between the first petitioner and the second respondent by the latter, is not one who has been delegated the power to discharge the judicial functions of the State. A writ petition, which is a public law remedy, would thus not lie against him. The basic issue involved in the writ petition would, thus, stand answered. 58. However, bearing in mind Mr. Menon’s contention that the Act does not provide a remedy to the petitioners and since consideration of the point involved in this writ petition has resulted in examination of the provisions of the Act in some detail, this Court proposes to embark on an enquiry in this behalf and indicate its line of thought in respect of the possible remedy that could be available to an aggrieved claimant who finds the arbitral proceedings to be closed by an order under Section 25(a) of the Act because of an alleged default on his part. 59. The expression ‘award’ has not been defined in the Act. However, on the authorities on the subject of arbitration, it seems to the Court that an award is akin to a decree as defined in the Code. While a decree is a formal expression of an adjudication by the court expressing it conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit, an award of an arbitral tribunal similarly decides finally and conclusively the matter in controversy between the parties to an agreement. The position in law is not in doubt. Such an award is liable to be challenged under Section 34 of the Act by the party aggrieved thereby on any of the grounds mentioned therein. Insofar as enforceability is concerned, Section 36 of the Act lays down that it can be enforced in the same manner as if it were a decree. Such an award is liable to be challenged under Section 34 of the Act by the party aggrieved thereby on any of the grounds mentioned therein. Insofar as enforceability is concerned, Section 36 of the Act lays down that it can be enforced in the same manner as if it were a decree. However, Mr. Menon has contended that an order of an arbitral tribunal terminating proceedings under Section 25(a) of the Act is not an award since there is no final and conclusive decision on the matters in controversy before it on merits. The order is akin to an order dismissing a suit for default because of lack of prosecution by the plaintiff and, therefore, an ‘order’ terminating arbitral proceedings is not comprehended within the expression ‘award’. 60. It would be necessary to examine at this stage how termination of proceedings before an arbitral tribunal might result. It seems, on reading the Act as a whole (section by section, clause by clause and word by word), that arbitral proceedings would stand terminated in the following situations: (i) ruling by the arbitral tribunal that it lacks the jurisdiction to decide the dispute referred to it [Section 16(1)]; (ii) by default, where the claimant fails to submit its statement of claim [Section 25(a)]; (iii) if the disputing parties settle the dispute (Section 30); (iv) upon a final arbitral award being passed [Section 32(1)]; (v) withdrawal of claim by the claimant and the respondent not objecting to it [Section 32(2)(a)]; (vi) if the parties agree to termination of the proceedings [Section 32(2)(b)]; and (vii) for any other reason, it becomes unnecessary or impossible to continue the arbitral proceedings [Section 32(2)(c)]. Insofar as the arbitral tribunal is concerned, termination of proceedings ordered by it is final since it becomes functus officio. 61. The remedies that are available may be noticed now. An arbitral award, be it final or interim, may be challenged in an application under Section 34 of the Act. Section 37 provides for appeal against orders of the arbitral tribunal, but except for those mentioned therein other orders passed by it are not appealable. An order of the arbitral tribunal under Section 16 of the Act ruling in favour of its jurisdiction could be challenged by a party if the occasion for challenging the award that is ultimately passed arises for him. An order of the arbitral tribunal under Section 16 of the Act ruling in favour of its jurisdiction could be challenged by a party if the occasion for challenging the award that is ultimately passed arises for him. An award recording settlement on agreed terms ordinarily may not be open to challenge but if sufficient ground exists (fraud and the like), there is no reason as to why an application for setting it aside under Section 34 shall not lie. Orders passed under Section 32(2) are not available to be challenged under the scheme of the Act. What about availability of a remedy against an order under Section 25(a)? This Court would now attempt to find an answer to it. 62. In the passing, it is important to bear in mind the difference between termination of proceedings and termination of the mandate of the arbitral tribunal. While termination of arbitral proceedings brings about termination of the mandate of the arbitral tribunal in seisin thereof, termination of the mandate of such arbitral tribunal (under Sections 12, 13, 14 and 15) does not result in termination of arbitral proceedings. What follows is that the authority of the arbitrator comes to an end but the proceedings may be continued by an arbitral tribunal appointed afresh and once it is resumed, the proceedings must terminate by taking recourse to any of the ways mentioned in paragraph 60 (supra). 63. The decision in M/s. Anuptech Equipments (supra) seeks to make a distinction between termination of arbitral proceedings by an award and termination thereof by an order under Section 25(a) of the Act. According to His Lordship, while the former results in a decision on the termination of arbitral proceedings on merits of the rival claims, the latter does not bring about similar result since an order under Section 25(a) is not a decision on merits. Having regard to the provisions of Sections 34 and 37 of the Act, which do not provide an avenue for the aggrieved claimant to challenge an order passed under Section 25(a) of the Act, His Lordship was constrained to hold that the Act does not provide any remedy to such party and hence a writ petition would be the only remedy considering ubi jus ubi remedium principle. 64. Section 32 of the Act deals with termination of proceedings. In relation thereto, a distinction is noticeable in sub-section (1). 64. Section 32 of the Act deals with termination of proceedings. In relation thereto, a distinction is noticeable in sub-section (1). Termination of proceedings could be brought about either by a “final arbitral award” or “an order of the arbitral tribunal under sub-section (2)”. Section 25 of the Act deals with consequences that might result in the event of default committed by a party. Omission to include the situation brought about by Section 25(a), also resulting in termination of proceedings, within the cover and ambit of Section 32 is of relevance which, perhaps, has been overlooked in the cited decisions. 65. This Court while examining the provisions of the Act and for identifying the forum where an order under Section 25(a) of the Act could be challenged, has to keep in mind the law laid down by the Supreme Court in a catena of decisions that the intention of the legislature primarily has to be gathered from the language used and attention has to be devoted to what has been said, as well as to what has not been said, by the legislature. It would, however, be a permissible exercise to harmoniously construe all the relevant provisions to effectuate the object sought to be achieved. Reading Section 32 again and again, to the mind of the Court, the words “for any other reason” used in clause (c) of sub-section (2) of Section 32 appear to be of immense significance. Plainly read in the context of Section 32 only, “for any other reason” would mean reasons other than those mentioned in clauses (a) and (b) of sub-section (2) of Section 32. Purposively read in the context of the remedies made available by the Act to an aggrieved party, the said words i.e. “for any other reason” suggest that an arbitral tribunal would be justified in terminating arbitral proceedings for ‘un-necessity’ or ‘impossibility’ arising out of reasons not otherwise specifically mentioned in the Act. Circumstances justifying closure of proceedings under Section 32(2)(c) of the Act need not be discussed here in detail. Circumstances justifying closure of proceedings under Section 32(2)(c) of the Act need not be discussed here in detail. Suffice it to say that if the claimant passes away leaving behind him none to carry the proceedings to its logical conclusion and the arbitrator finds no other option but to terminate the proceedings or if the claimant loses interest in the midst of arbitral proceedings and abstains from participating therein for days together despite being put on notice, there could be justification for the arbitrator to terminate it under clause (c) of sub-section (2) of Section 32 holding that it is unnecessary to proceed further. This is not to be construed as a fetter for the arbitral tribunal to pass its award on the basis of the evidence before it, since such action is authorised by Section 25(c) of the Act. Non-payment of the arbitrator’s fees by the parties to the proceedings could also result in a situation where the arbitrator might find it impossible to continue and the same result could ensue. An order terminating proceedings under Section 25(a), in the circumstances, ought to be understood as different from an order under Section 32(2)(c), though it also results in termination. This is because Sections 25(a) and 32(1) and (2) have been enacted for different purposes. While an order passed under the former section is discretionary and would require an application of mind by the arbitral tribunal, termination of proceedings contemplated by the three clauses of sub-section (2) of Section 32 of the Act in all likelihood necessitate passing of such an order, which may not involve exercise of serious discretion and would in its very nature be demanded by the need of the moment. The legislature deliberately appears to have insulated such orders from any challenge. 66. However, that is not the case with an order terminating proceedings under Section 25(a) of the Act. The legislature deliberately appears to have insulated such orders from any challenge. 66. However, that is not the case with an order terminating proceedings under Section 25(a) of the Act. Take for instance a case where the claimant seeks to set up a case before the arbitral tribunal that there has been no default on his part in filing the statement of claim in terms of Section 23(1) of the Act but the arbitral tribunal passes an order under Section 25(a) thereof holding that there has indeed been a default, should the determination made by the arbitral tribunal be not construed as one on the merits of the dispute that he is called upon to decide and, therefore, an award? Should such an order be allowed to attain finality on the specious ground that the Act does not provide a remedy against such an order? This Court finds it difficult to accept the position. 67. It could also emerge in a given case that the claimant defaults in filing his statement of claim within the time agreed upon or granted; but it is not imperative for the arbitral tribunal to terminate the proceedings. It could well call upon the claimant to show cause why an order terminating the proceedings may not be passed. If cause shown by the claimant urging the arbitral tribunal not to terminate the proceedings and to extend time for filing the statement of claim is countered by the respondent asserting that sufficient cause has not been shown and termination ought to follow, that would give rise to a contentious issue. Once it arises for decision, the arbitral tribunal ought to decide fairly and justly. In the event of the cause shown being accepted, and on termination of proceedings by a final arbitral award the respondent considers itself aggrieved, it would be open to the respondent to challenge the award and at the same time urge before the court that the order passed earlier accepting the cause shown ought not to have been made. If an order accepting the cause could be urged as a ground of challenge in an application under Section 34 of the Act, it is beyond comprehension that an order refusing to accept the cause shown would be unchallengeable. If an order accepting the cause could be urged as a ground of challenge in an application under Section 34 of the Act, it is beyond comprehension that an order refusing to accept the cause shown would be unchallengeable. Ideally, the legislature ought to have expressly provided a remedy under the Act against an order made under Section 25(a) rather than leaving the law uncertain and open to interpretation. However, merely because it has not been so provided expressly, would it be prudent to view the Act as betraying a lack of rationale on the part of the legislature? This Court is sure, it could not have been the legislative intent to confer carte blanche power to an arbitral tribunal to pass such an order that it would remain immune from judicial scrutiny. There could thus be little reason as why termination of proceedings finally brought about by such other orders containing ingredients for giving rise to a legitimate grievance of one of the parties may not be comprehended within the expression “arbitral award” in Section 34 of the Act. The said expression ought to be freed from the narrow and restricted meaning that has been attributed to it so long for the protection of the right of a party to an arbitral proceedings, who may have been subjected to gross injustice. Hence a party aggrieved complaining of unfair and unjust treatment by an alleged biased arbitrator may take recourse to Section 34 of the Act for having the arbitral award i.e. the order under Section 25(a), passed on consideration of the merits of the rival claims raised in connection therewith or even an order not considering the reason for the default, set aside. Since arbitral proceedings are not to be regulated by the provisions of the Code in terms whereof decree would not include any order of dismissal for default and that an arbitral award could be set aside under Section 34 of the Act if the applicant were successful in establishing that either he was under some incapacity and/or that the impugned award is opposed to public policy, it would be unjust to construe the provisions of the Act in a manner so as to render him remedyless. 68. 68. Without the provisions of the Act being strained and subjecting it to any violence, and considering that access to justice is recognised as a human right, reading of Section 34 of the Act to include a right to challenge an order under Section 25(a) thereof within the period of limitation and with the obvious rider that the challenge must be based on the grounds traceable in Section 34 may not sound illogical or untenable. In the light of the above discussion, a party aggrieved by an order under Section 25(a) of the Act may not altogether be without a remedy. 69. Viewed from a completely different angle, even if an order under Section 25(a) of the Act were not comprehended within an “arbitral award”, there could be another remedy available to an aggrieved party like the first petitioner. 70. A suit, dismissed for default, could be restored to its original file by the Court that dismissed it on sufficient cause being shown in an application under Order IX Rule 9 of the Code. Dismissal of a suit on the ground of default does not bar a second suit. The principle of res judicata would not apply since it is not a disposal on merits. Even otherwise, Section 11 of the Code and Order 23 of the Code barring a second suit if an earlier suit on the same cause of action is withdrawn without obtaining permission to file afresh are excluded in arbitral proceedings by reason of Section 19 of the Act. However, a second request for referring the dispute to arbitration may be resorted to if limitation and the terms of the agreement do not otherwise bar it. This Court has not noticed any statutory bar for a second reference, if the proceedings stand terminated. An arbitration agreement in a contract is not a spent force once an arbitrator is appointed. Having regard to the principle ubi jus ubi remedium, a bar for a claimant to take recourse to the provisions in the contract for the appointment of an arbitrator once again if there be no conclusive and final determination of the matters in controversy arising out of the contract itself, because of an order under Section 25(a) having surfaced in the meantime, may not be readily inferred. 71. 71. For the aforesaid reasons, the view expressed in the decision in Dilnawaz Kohinoory (supra) holding that until such time the order closing the proceedings is set aside, no request under Section 11 of the Act could be entertained may require a re-look. 72. Whatever view one is inclined to take out of the two discussed above, the first petitioner would not be without a remedy. Should these two views not commend to reflect the correct legal position, in any event, the first petitioner cannot invoke the writ jurisdiction for absence of any remedy under the Act. 73. Last, but not the least, the decision in Unik Accurates (supra). It has been ascertained from the learned advocates who appeared for the respective parties before the learned judge of this Court that the decision was not challenged and hence attained finality inter se the parties. For whatever the said decision is worth, the first petitioner is entitled to rely on it and take further action according to law. 74. In the result, the preliminary objection succeeds. The writ petition fails on the point of maintainability and is dismissed, without costs. 75. Needless to observe, this judgment and order shall not preclude the petitioners to pursue the appropriate remedy in accordance with law. Urgent Photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.