Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 442 (KER)

Hrishikesan Namboothiripad v. Pny Sabha Finance Limited

2019-06-12

SHAJI P.CHALY

body2019
JUDGMENT : The captioned writ petitions are materially connected in respect of orders passed by the Arbitrator in proceedings under the provisions of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'Act 1996' for short) holding that, the arbitral proceedings are maintainable. Therefore, I heard them together and propose to pass this common judgment. The predominant contention advanced by the learned Counsel for the petitioner is that from the order passed by the Arbitrator, there is no remedy available to the petitioner and therefore, since the Arbitrator has all the trappings of an authority functioning under a statute, the writ petition is maintainable under law. However, on a perusal of sub sections 5 and 6 of Section 16 of Act, 1996, it is clear that when the Arbitrator passes any order during the pendency of the arbitration in respect of the maintainability of the arbitration proceedings, the remedy available to the petitioner is to challenge the order along with the challenge to the award, under Section 34 of Act 1996. In this context it is only appropriate that the said provisions of section 16 of Act 1996 dealing with the competence of arbitral tribunal to rule on its jurisdiction is extracted for discussion. “ 16. Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement and for that purpose:- (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract and (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed or participated in the appointment of, an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in subsection (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub-section 2. The provisions are self explanatory and therefore, the petitioner has a clear remedy available under law. Moreover petitioner has no case that fair opportunity was not provided in contesting the proceedings and therefore, there are no circumstances of arbitrariness and illegality made out to exercise the power of judicial review in the order impugned, under Article 226 of the Constitution of India and that apart, it is an order assigning sufficient reasons also. In that view of the matter, I am of the considered opinion that the writ petition is not maintainable at this stage of proceedings. Therefore, the writ petitions are disposed of, leaving open the liberty of the petitioners to challenge the order in accordance with the provisions specified above.