Tribunal's decision on jurisdiction and maintainability of counter claim cannot be questioned at this stage.

1. This Petition under Section 34 of the Arbitration and Conciliation Act 1996 raises a challenge to a procedural order of 13 May 2010 of an arbitral tribunal constituted in pursuance of an order passed by a designated Judge of the Supreme Court under Section 11(6).

2. On15 December 2000 a shareholders agreement was entered ’ into between the First Petitioner, the Respondent and the predecessor of the Second Petitioner. On 31 January 2006 a notice of termination was served by the First Petitioner on the ground that there was a breach of the shareholders agreement arising out of the Respondent ’ having applied for a United Access Service Licence for Mumbai Metro Circle in violation of the provisions of Article 3.04(b). This was followed on 27 November 2006 by a second notice by the First Petitioner seeking to terminate the agreement on the ground that there was a breach of the confidentiality clause of the shareholders’ agreement. On 5 May 2006 the First Petitioner issued a formal notice invoking the arbitration agreement between the parties under Section 21 of the Arbitration and Conciliation Act 1996. On 1 June 2006 two share purchase agreements were executed between the parties in pursuance of which certain shares of the Petitioners came to be sold to the Respondent though without prejudice to the contentions of either party with reference to the termination notices and the rights which had accrued under the shareholders agreement. The ’ contention of the Respondent on an application under Section 11(6) being moved was that there was no live dispute that would survive between the parties in view of the share purchase agreements dated 1 June 2006. Proceedings initiated before this Court under Section 11(6) were withdrawn in view of the contention of the Respondent that the presence of a foreign party would implicate an international commercial arbitration and that it would be only the Chief Justice of India who would have powers to constitute an arbitral tribunal under Section 11(12).

3. On 9 July 2008 a designated Learned Judge of the Supreme Court, in exercise of the jurisdiction under Section 11(12) rejected the contention of the Respondent that there was no live dispute that would survive as between the parties. A live dispute was found to exist and accordingly the application was disposed of by constituting an arbitral tribunal consisting of Dr. Justice A.S. Anand, Former Chief Justice of India, Mr. Justice Arun Kumar and Mr. Justice P. K. Balsubramanyan, Former Judges of the Supreme Court. The decision is reported in Tata Industries Limited v. Grasim Industries Limited ((2008) 10 SCC 187).

4. On5 August 2008 the Respondent issued a notice to the Petitioners alleging a breach of the shareholders agreement and ’ thereafter filed a counter claim before the arbitral tribunal. The Petitioners moved an application inter alia under Sections 16(3) and 19(3) by which the Tribunal was requested to decide as a preliminary issue as to whether the counter claims of the Respondent were maintainable. By its procedural order dated 13 May 2010 the arbitral tribunal has held that the Respondent is entitled to file a counter claim. The Tribunal found no merit in the application seeking the rejection of the counter claim and came to the conclusion that the counter claim would have to be decided on merits after evidence was taken. The Tribunal has, however, clarified that the observations contained in the procedural order are confined to the disposal of the application filed by the Petitioners questioning the maintainability of the counter claim.

5. The procedural order of the Tribunal is assailed under Section 34 and the contention of the Petitioner is that the order amounts to an adjudication which will fall within the definition of the expression arbitral award within the meaning of Section 2(c). The “ ” maintainability of the Petition has been questioned on behalf of the Respondent on the ground that the ruling by the Tribun