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2016 DIGILAW 2332 (ALL)

Jagdish Singh v. Union of India

2016-07-06

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT Jagdish Singh son of Sri Puran Singh is before this Court and his grievance is that the award dated 30.11.2016 passed by sole arbitrator is not at all being given effect to and, therefore, a request is being made to issue writ of mandamus directing the respondents no. 2, 3 and 4 to implement the said award in question. The second prayer that has been so made is to the effect that the respondents may be directed to give supply of the petroleum produce, i.e., MS/HSD regularly to the petitioner's retail outlet forthwith in pusuance of the award in question and last prayer is to direct the respondents not to interfere with the sales and supply of the diesel/petrol in the petitioner's retail outlet in pursuance of the said award in question. 2. On the matter being taken up, Sri Prakash Padia has placed reliance on the Judgment of Apex Court in AIR 2006 Supreme Court 450, M/S S.B.P. & Co. Vs. M/S Patel Engineering Ltd. & another, wherein the Hon'ble Apex Court has proceeded to take the following view in paragraph 46: - "46. We, therefore, sum up our conclusions as follows: 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 Section 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. (iii) In case of designation of a judge of the High Court or of the Supreme Court, the power that is exercised by the designated, judge would be that of the Chief Justice as conferred by the statute. (iv) The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the judge designated would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the judge designate. (v) Designation of a district judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act. (vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with 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. (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 of India to the Supreme Court. (viii) There can be no appeal against an order of the Chief Justice of India or a judge of the Supreme Court designated by him while entertaining an application under Section 11(6) 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. (x) Since all were guided by the decision of this Court in Konkan Railway Corpn. Ltd. & anr. Vs. Rani Construction Pvt. Ltd. [ (2002) 2 SCC 388 ] and orders under Section 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. Rani Construction Pvt. Ltd. [ (2002) 2 SCC 388 ] and orders under Section 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 Section 11(6)of the Act. (xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6)of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a Judge of that court designated by the Chief Justice. (xii) The decision in Konkan Railway Corpn. Ltd. & anr. Vs. Rani Construction Pvt. Ltd. [ (2002) 2 SCC 388 ] is overruled" 3. Relying upon the aforesaid Judgment, Sri Prakash Padia submits that such an award could not have been passed. The representation in question that has been moved for restoration/resuming the supplies has already been turned down on 20.6.2016. 4. The Arbitration and Conciliation Act, 1996 is a self-contained Act wherein Chapter VIII deals with the finality and enforcement of arbitral award. In pith and substance, grievance of the petitioner is that the award dated 30.11.2026 passed by sole arbitrator is not being implemented which prayer has been resisted by Sri Prakash Padia submitting that the award in question cannot be enforced. 5. Once there is specific provision provided for under Section 36 of the Arbitration and Conciliation Act, 1996 for enforcement of award then the said statutory provision has to be invoked for enforcement of award and as to whether said award is enfoceable or not is a question to be answered by the said forum at the first instance. 6. In the present case, the factual position that so emerges from the record is that the award in question has been passed by the sole arbitrator and time for setting aside the same has expired and in view of this, the petitioner intends that the award in question should be enforced. 6. In the present case, the factual position that so emerges from the record is that the award in question has been passed by the sole arbitrator and time for setting aside the same has expired and in view of this, the petitioner intends that the award in question should be enforced. In our considered opinion, petitioner's appropriate remedy is to invoke the remedy provided for under Section 36 of the Arbitration and Conciliation Act, 1996 and in view of this, this Court cannot come to the rescue of the petitioner. But, we leave it open to the petitioner to choose the forum as is provided for under law and if such remedy is invoked, the claim of the petitioner as well as objector shall be objectively considered by the court concerned in accordance with law. Disposed of.