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2013 DIGILAW 783 (GAU)

Siemens v. Skylab (Assam)

2013-11-06

HRISHIKESH ROY

body2013
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. I. Lahiri, the learned counsel appearing for the petitioner. The respondent is represented by advocate Mr. K. Goswami. Since arguments on the maintainability of the Review application were advanced by the parties those arguments are being considered through this order. The Arbitration petition 37/2007 was filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Arbitration Act") for nomination of an Arbitrator by the Chief Justice. Interpreting Clause 9 of the Agreement dated 6.9.2011 it was declared that the unilateral appointment of Arbitrator by M/s Siemens Limited was unjustified as Arbitrator was agreed to be appointed jointly by both the parties. Consequently the Court quashed the appointment of Ms. Sudeshna Bagchi and ordered the parties to appoint the Arbitrator through joint consultation. 2. Being dissatisfied with the order passed on the application filed under Section 11(6) of the Arbitration Act, this Review petition is filed for recall of the order dated 23.4.2010. Here the petitioner questions the jurisdictional competence of the Gauhati High Court's Chief Justice to entertain the Section 11 application by projecting that under Clause 9 of the agreement, the parties had agreed to conduct the proceedings at Kolkata. 3. However maintainability of the Review petition is being questioned by the respondent by arguing that review power has to be statutorily conferred and there can be no inherent exercise of review power for an order under Section 11(6) of the Arbitration Act. 4. Making a distinction on exercise of power by a Court and by the designated authority under Section 11(6) of the Arbitration Act, the respondent in turn submits that in Section 11 application, the Chief Justice even while exercising judicial power, doesn't function as a "Court" within the meaning of sub-section (e) of Section 2(1) of the Arbitration Act and on this basis, it is argued that the review power under the Civil Procedure Code can't be invoked by the Chief Justice or the designated Judge, to re-consider an order passed under Section 11(6) of the Arbitration Act. 5. The Chief Justice of the High Court under Section 11(6) of the Arbitration Act exercises judicial power as was held in S.B.P. & Co. v. Patel Engineering Ltd., reported in (2005) 8 SCC 618 . 5. The Chief Justice of the High Court under Section 11(6) of the Arbitration Act exercises judicial power as was held in S.B.P. & Co. v. Patel Engineering Ltd., reported in (2005) 8 SCC 618 . Here the Court also declared that the power to nominate Arbitrator is conferred on the concerned Chief Justice as the highest judicial authority in their jurisdictional area and this power is not conferred on the Court they preside over. Thus a fine distinction was made on the power to nominate an Arbitrator by declaring that this power is vested on the chief Justice and not on the Court. Moreover, since the order passed by the Chief Justice or the designated Judge of a High Court attains finality under sub-section (7) of Section 11(6) of the Arbitration Act, it was declared that such orders can be challenged only under Article 136 of the Constitution in the Supreme Court. 6. Relying upon the above decision and projecting that the Arbitration Act nowhere provides for review power, the respondent argues that this review petition can't be entertained by the Chief Justice or his designate and if one is aggrieved by the order on the Section 11 application, the aggrieved party may challenge the said order only through a Special Leave Petition in the Supreme Court. 7. Questioning how this Court can entertain the review petition, Mr. K. Goswami, the learned counsel refers to the decision in Rodemadan India Ltd. v. International Trade Expo Centre Ltd., reported in (2006) 11 SCC 651 to project that power under Section 11(6) is a statutory power conferred on the Chief Justice and although the said power is judicial in nature, it is not the normal exercise of jurisdiction by the High Court or the Supreme Court. Referring to Section 42 in the Arbitration Act, the counsel argues that the application under Section 11 was rightly entertained by the Chief Justice and Clause 9 of the agreement dated 6.9.2001 doesn't oust the jurisdiction of the Chief Justice of the Gauhati High Court, to entertain the application under Section 11. 8. In his turn, advocate Mr. I. Lahiri relies on the decision in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., reported in (2006) 5 SCC 501 to project that the order passed by the Chief Justice of India under Section 11(6) of the Arbitration Act, is reviewable. 8. In his turn, advocate Mr. I. Lahiri relies on the decision in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., reported in (2006) 5 SCC 501 to project that the order passed by the Chief Justice of India under Section 11(6) of the Arbitration Act, is reviewable. Accordingly it is argued that this review petition should be considered on merit and should not be thrown out at the threshold. 9. While declaring that the order passed by the Chief Justice of India is reviewable, in Jain Studios Ltd. (supra), the Supreme Court construed that such orders are covered by Article 137 of Constitution which confers review power on the Supreme Court. But in this decision, the earlier judgment in Rodemadan India Ltd. (supra) was ignored. Moreover the Court's attention was not drawn to the fact that exercise of power by the Chief Justice of India or the Chief Justice of a High Court is not that of a Court. In Rodemadan India Ltd. (supra) it was held specifically that the power exercised under Section 11(6) of the Arbitration Act is not the power of the Supreme Court or of the High Court but this is a special power conferred on the Chief Justice to nominate arbitrator. But the Arbitration Act nowhere provide for review of order passed under this section. 10. In the backdrop of the earlier view in Rodemadan India Ltd. (supra), it is obvious that in Jain Studios Ltd. (supra), the designated Judge made his declaration without reference to the previous decision of a coordinate authority and therefore the later decision in consequence is a per incuriam judgment. Moreover since the earlier decision was rendered on the precise point on the nature of the power exercised under Section 11of the Arbitration Act, I am inclined to follow the ratio in Rodemadan India Ltd. (supra). That apart the ratio in Jain Studios Ltd. (supra) where review was held to be available, can't be applied here to answer the maintainability of this review application since under Article 137 of the Constitution, only the Supreme Court is given the authority to exercise review power and High Court is not conferred with any similar power. Therefore this decision in my view can't be an authority for the proposition that review power is exercisable by this Court under Section 11(6) of the Arbitration Act. 11. Therefore this decision in my view can't be an authority for the proposition that review power is exercisable by this Court under Section 11(6) of the Arbitration Act. 11. Under Section 11(6) of the Arbitration Act, special jurisdiction is conferred on the country's Chief Justice or the Chief Justices of High Courts and the judicial power exercised by the Chief Justice under Section 11(6) is not that of a Court. Therefore the power of review for an order passed by the Chief Justice or the designated Judge under Section 11(6) of the Arbitration Act has to be traceable to a specific statutory provision. In Lily Thomas v. Union of India, reported in (2000) 6 SCC 224 the Supreme Court held that power of review is not an inherent power and it must be conferred by law either specifically or by necessary implication. However in the present case, this review application is not filed under any statutory provision but the petitioner simply relies upon the ratio in Jain Studios Ltd. (supra) where it was held that by invoking the power under Article 137, a review petition against an order passed under Section 11(6) of the Arbitration Act can be entertained. But this was obviously in the context of the Supreme Court and here since this is debated in the High Court, recourse to Article 137 is impermissible. Therefore having regard to the fact that the decision in Jain Studios Ltd. (supra) ignored the previous decision in Rodemadan India Ltd. (supra) rendered by a coordinate bench, I am of the view that the power of review can't be exercised for an order passed under Section 11(6) of the Arbitration Act on the authority of the ratio of the per incuriam decision. 12. Nomination of arbitrator under Section 11(6) of the Arbitration Act is a statutory power to be exercised by the Chief Justice and having regard to the judicial pronouncement that this power is a special statutory power exercised not by the Court but by the highest jurisdictional judicial authority, I am of the view that recourse to the provision of Order XLVII of the CPC will also not be justified to entertain this review application. Having concluded thus, I hold that power for review is not conferred on the Chief Justice or his designate under the Arbitration Act for reviewing orders passed under Section 11 and accordingly the maintainability question is answered against the petitioner. Therefore this petition is dismissed. It is ordered accordingly.