ORDER

1. LEAVE GRANTED.

2. THE APPELLANT HAS IMPUGNED THE ORDER DATED 26-8-2003 BY WHICH THE DIVISION BENCH OF THE KERALA HIGH COURT HAS DISPOSED OF A WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION. WHILE REFUSING TO ENTERTAIN THE WRIT PETITION ITSELF ON THE GROUND THAT DISPUTED FACTS WERE INVOLVED, THE HIGH COURT PASSED THE FOLLOWING ORDER:

"AFTER GIVING ANXIOUS CONSIDERATION TO THE MATTER, WE ARE OF THE VIEW THAT THE MATTER SHOULD BE REFERRED TO ARBITRATION UNDER THE ARBITRATION AND CONCILIATION ACT, 1996. WE APPOINT SHRI M.R. HARIHARAN NAIR, RETIRED JUDGE OF THIS COURT, RESIDING IN HOUSE NO. TC 36/711(1), PARIJATHAM, K.V. HOUSING PERUNTHANNI, THIRUVANANTHAPURAM AS THE SOLE ARBITRATOR TO DECIDE THE DISPUTE TAKEN BY THE PETITIONER IN EXT. P-9. THE ARBITRATOR SHALL FIX HIS TERMS AND CONDITIONS WITH THE PETITIONER AND RESPONDENT AND THE ARBITRATOR SHALL COMPLETE ARBITRATION WORK WITHIN SIX MONTHS FROM THE DATE OF ENTERING APPEARANCE."

3. THE NAMED ARBITRATOR ASSUMED JURISDICTION ON THE BASIS OF THIS ORDER AND HELD TWO SITTINGS IN WHICH VARIOUS DIRECTIONS WERE GIVEN. THE RESPONDENT HAS FILED ITS STATEMENT OF CLAIM BEFORE THE ARBITRATOR. THE APPELLANT IS YET TO FILE ANY STATEMENT OF DEFENCE.

4. THE APPELLANT HAS CHALLENGED THE ORDER OF THE HIGH COURT ON THE GROUND THAT IT HAD NO JURISDICTION WHATSOEVER TO APPOINT AN ARBITRATOR, THERE BEING NO AGREEMENT IN WRITING AS PROVIDED UNDER THE ARBITRATION AND CONCILIATION ACT, 1996. RELIANCE HAS BEEN PLACED ON THE DECISION OF THIS COURT REPORTED IN T.N. ELECTRICITY BOARD V. SUMATHI1 IN SUPPORT OF THIS SUBMISSION.

5. LEARNED COUNSEL APPEARING ON BEHALF OF THE RESPONDENT THAT THE IMPUGNED ORDER OF THE HIGH COURT WAS IN FACT THE OUTCOME OF CONSENT AS HAD BEEN INDICATED BY THE PARTIES APPEARING BEFORE THE HIGH COURT. IT IS SUBMITTED THAT, IN ANY EVENT, THE APPELLANT HAVING PARTICIPATED IN THE PROCEEDINGS BEFORE THE ARBITRATOR, THE APPELLANT WAS ESTOPPED FROM CHALLENGING THE JURISDICTION OF THE ARBITRATOR AND MUST BE DEEMED TO HAVE CONSENTED IN THE ARBITRATOR’S APPOINTMENT. THE FINAL SUBMISSION MADE BY THE RESPONDENT WAS THAT IN THE EVENT THIS COURT HELD IN FAVOUR OF THE APPELLANT, THE MATTER SHOULD BE REMANDED BACK TO THE HIGH COURT FOR RECONSIDERATION OF THE WRIT PETITION ON THE MERITS OF THE MATTER.

6. WE ARE UNABLE TO ACCEDE TO ANY OF THE THREE SUBMISSIONS MADE BY THE RESPONDENT. THE ARBITRATION AND CONCILIATION ACT, 1996, CLEARLY PROVIDES THAT THE ARBITRATION AGREEMENT MUST BE AN AGREEMENT WHICH SHOULD BE IN WRITING [SEE SECTION 7(4)]. IN THIS CASE, THERE WAS NO AGREEMENT AT ALL, QUITE APART FROM THE FACT THAT THERE WAS NO WRITING TO THIS EFFECT. THE HIGH COURT HAS NOT IN THE IMPUGNED ORDER RECORDED ANY CONSENT AS HAS BEEN CONTENDED BY THE RESPONDENT. WE ARE NOT PREPARED TO ACT ON ANY BASIS OTHER THAN THAT EXPRESSED BY THE HIGH COURT ITSELF.

7. THE IMPUGNED ORDER, THEREFORE, CANNOT BE SUSTAINED. IN THE ABSENCE OF ANY AGREEMENT, THE ARBITRATOR COULD NOT HAVE ANY JURISDICTION. THE PARTICIPATION OF THE APPELLANT IN THE PRELIMINARY SITTINGS BEFORE THE ARBITRATOR WOULD NOT MAKE NAY DIFFERENCE. IT IS TO BE NOTED THAT UNDER SECTION 16 SUB-SECTION (2), THE GROUND CHALLENGING THE JURISDICTION OF THE ARBITRATOR IS REQUIRED TO BE TAKEN AT THE EARLIEST AND NOT LATER THAN THE FILING OF THE DEFENCE BUT A PARTY SHALL NOT BE PRECLUDED FROM RAISING SUCH A PLEA MERELY BECAUSE IT HA APPOINTED OR PARTICIPATED IN THE APPOINTMENT OF AN ARBITRATOR. THE LANGUAGE OF THE SECTION, THEREFORE, LEAVES NO ROOM FOR DOUBT THAT MERE PARTICIPATION IN THE PROCEEDINGS WOULD NOT TANTAMOUNT TO AN ACCEPTANCE OF THE JURISDICTION OF THE ARBITRATOR TO ARBITRATE DISPUTES BETWEEN THE PARTIES.

8. THE DECISION REPORTED IN T.N. ELECTRICITY BOARD1 IS ON ALL FOURS WITH THE FACTS OF THE PRESENT CASE. THIS COURT HAS ALREADY SAID IN PARA 12 OF THE DECISION: (SCC PP.552-53)

“12. SINCE DISPUTED QUESTIONS OF FACTS AROSE IN THE PRESENT APPEALS THE HIGH COURT SHOULD NOT HAVE ENTERTAINED WRIT PETITIONS UNDER ARTICLE 226 OF THE CONSTITUTION