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2014 DIGILAW 204 (JK)

Union Of India v. Des Raj Nagpal

2014-05-12

ALI MOHAMMAD MAGREY

body2014
1. In the instant writ petition, petitioners have questioned the order passed on 30.12.2013 in Arbitration Application No. 7 of 2013 (CMA No. D-16/2013) titled M/s Des Raj Nagpal Engineer and Contractor v. Union of India and ors, whereby and where under learned Single Judge of this Court while disposing of the Arbitration Application appointed Shri S. K. Gupta, Joint DG (Contracts), Panel of Arbitrators, Pune, CWE Pune Complex, Gen Cariappa Marg, Pune-1, as an arbitrator to adjudicate upon the disputes. 2. The factual matrix of the case may briefly be adverted to. 3. Respondent is a private limited company, who on being declared as a successful bidder was allotted the contract bearing No. CEUZ-07/2005-06 executed between petitioner No. 1 through petitioner No. 3 with the respondent. 4. Respondent herein requested E-in-C's Branch for appointment of Arbitrator vide letter dated 16.01.2013 and thereafter E in C's Branch has asked particulars for appointment vide letter dated 01.02.2013 and case of appointment was submitted vide letter dated 02.04.2013 to the competent authority. Respondent herein had filed an application for appointment of arbitrator regarding contract bearing No. CEUZ- 07/2005-06. Petitioners had filed objections stating therein that the matter has been referred for adjudication to Shri Satish Chander, Joint DG (Contracts) whose name figures in the panel of arbitrators short-listed by the petitioner. In that view of the matter, petitioners submitted that the application has become infructuous. 5. On the strength of the pleadings of the parties, coupled with the submissions made, learned Single Judge of this Court while disposing of the arbitration application vide order dated 30.12.2013, observed as under:- "From the affidavit filed by the respondents, it is clear that reference was made to the arbitrator, Sh. Satish Chander in the month of April 2013 whereas, the present petition was filed on 27.02.2013. Since the petitioner is agreeable to the appointment of an arbitrator from the panel prepared by the respondents themselves, in these circumstances, it is deemed appropriate to appoint Sh. K. K. Gupta, Joint DG (Contracts), Panel of Arbitrators, Pune, CWE Pune Complex, Gen Cariappa Marg, Pune-1 as an arbitrator to adjudicate upon the disputes as referred to in the body of the petition." 6. K. K. Gupta, Joint DG (Contracts), Panel of Arbitrators, Pune, CWE Pune Complex, Gen Cariappa Marg, Pune-1 as an arbitrator to adjudicate upon the disputes as referred to in the body of the petition." 6. Feeling aggrieved of the order dated 30.12.2013 passed by the learned Single Bench of this Court in AA No. 07/2013 (CMA No. D-16/2013), Union of India has filed the instant writ petition on the ground that during the pendency of the arbitration application under Section 11(6) and Section 9 of the J&K Arbitration and Conciliation Act, 1997, Shri Satish Chander, CE, QS & C Panel of Arbitrator (Chandigarh) has been appointed as Arbitrator by the competent authority on 8th April, 2013 and the learned Single Bench of this Court was apprised about the appointment of arbitrator. It is stated that arbitrator has already entered in reference on 30th April, 2013 and issued notices to the parties for submitting claim and counter claim. However, it is stated that learned Single Bench while exercising powers under Section 11 of the Arbitration Act has ignored all these submissions. 7. Heard learned counsel for the parties and perused the record. 8. Mr. Anil Mahajan, learned counsel for the respondent has raised preliminary objection regarding the maintainability of the writ petition, questioning the order passed by the learned Single bench of this Court in AA No. 07/2013, on the ground that the writ is not the remedy, as held by Hon'ble Supreme Court in case reported in AIR 2006 SC 450, M/s S. B. P. and Co v. M/s Patel Engineering Ltd. and anr. 9. Perusal of the judgment of the Hon'ble Supreme Court (supra) reveals that the order passed by the Chief Justice or by his designate Judge under Section 11 (6) of the Arbitration and Conciliation Act, 1997 cannot be taken as a administrative order, but on the scheme of the Act, the Chief Justice or his designate Judge has to consider all the questions relating to jurisdiction in relation to the contract, whether there was any arbitration agreement in terms of section 7 and whether the persons before him with the request, is a party to the arbitration agreement. On coming to a conclusion on these aspects, he has to enquire whether the conditions for exercise of his power under Section 11 (6) exit in the case and only on being satisfied in this behalf, he could appoint an arbitrator or an arbitral tribunal on the basis of the request and without considering these questions no finding can be recorded. 10. The instant petition challenging the order of the learned Single Judge on the strength of the law laid down by the Hon'ble Supreme Court in M/S Patel's case (supra) is not maintainable. 11. In the given circumstances, the instant petition fails and the same is, accordingly, dismissed. No costs.