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2018 Supreme(Bom) 1749
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
NUTAN D. SARDESSAI, J.
Chief Engineer, Public Works Department, Government of Goa, Altinho, Panaji - Appellant
Versus
Karnatak Cement Pipe Factory, Engineers and Contractors - Respondent
W.P. No. 868 of 2018
Decided On : 01-11-2018
Pravin Faldessai, Adv., P.A. Kholkar, Adv.
Headnote:
Arbitral Tribunal - Objection in jurisdiction - Writ Jurisdiction - Challenge - Constitution of India 1950 - Arbitration and Conciliation Act 1996 - Article 227 - Section 29A, 34, 37 ,16 - Parties are put to notice that matter would be disposed off finally at admission stage itself - Heard forthwith with consent of learned Advocate for parties - Shri P.A. Kholkar, learned Advocate waives service of notice on behalf of respondents - This petition takes exception to order passed by learned Sole Arbitrator pursuant to which he held while deciding an application for extension of time to make an award that Act of 2015 was not applicable to arbitral proceedings at large before him, that parties were not required to seek extension of time for making award and disposed off application accordingly - Petitioner is invoking jurisdiction of this Court under Article of Constitution to challenge said order Learned Additional Government Advocate for petitioner who invited attention to order passed by learned Principal District Judge pursuant to which he had enlarged time for deciding arbitral proceedings and after considering application under S 29A of Act, 1996 amended by Amendment Act of 2015 - He next adverted to order under challenge and besides invited attention to clause 25 of Agreement dealing with arbitration and submitted that Act of 2015 would apply – Held, Court held that taking an overall view of scheme of S 16, one thing is very clear that an Arbitrator has power to decide application with regard to existence of an arbitration agreement and objection in respect of jurisdiction - Arbitrator having once taken decision and rejected - objection with regard to jurisdiction and observed further that there is existence of arbitration agreement between parties and proceed - Such order cannot be challenged except by remedy as available under S 34 or 37 of Arbitration Act. It further reiterated well settled proposition culled out in S.B.P. and Company that once matter reaches sole arbitrator, High Court would not interfere with orders passed by Arbitrator or Arbitral Tribunal during course of arbitration proceedings and parties could approach Court only in terms of Section 37 of Act or in terms of Section 34 of Act - Considering authorities placed before this Court have no hesitation to hold that petition filed by petitioner is not maintainable as an alternate efficacious remedy is also available to petitioner in due course of time under S 34 of Act to assail order of learned Arbitrator - In result, Court pass following Order ,Petition is dismissed with no order as to costs - Ad-Interim stay stands vacated – Petition Dismissed.
NUTAN D. SARDESSAI, J.
1. The parties are put to notice that the matter would be disposed off finally at the admission stage itself.
2. Heard forthwith with the consent of the learned Advocate for the parties.
3. Rule.
4. Shri P.A. Kholkar, learned Advocate waives service of notice on behalf of the respondents.
5. This petition takes exception to the order dated 06/06/2018 passed by the learned Sole Arbitrator pursuant to which he held while deciding an application for extension of time to make an award that the Amendment Act of 2015 was not applicable to the arbitral proceedings at large before him, that the parties were not required to seek the extension of time for making the award and disposed off the application accordingly. The petitioner is invoking the jurisdiction of this Court under Article 227 of the Constitution to challenge the said order.
6. Heard Shri Pravin Faldessai, learned Additional Government Advocate for the petitioner who invited attention to the order passed by the learned Principal District Judge dated 07/10/2017 pursuant to which he had enlarged the time for deciding the arbitral proceedings and after considering the application under Section 29A of the Arbitration and Conciliation Act, 1996 amended by the Amendment Act of 2015. He next adverted to the order under challenge and besides invited attention to clause 25 of the Agreement dealing with the arbitration and submitted that the Act of 2015 would apply.
The finding of the learned Sole Arbitrator was prejudicial to the interest of the petitioner inasmuch as the earlier application for extension of time was granted under the Act of 2015 and besides the petitioner would be prejudiced by any award by the learned Sole Arbitrator particularly in the matter of applicability of interest in the event the arbitral proceedings were held against him. The impugned order had therefore to be set aside and as their right to agitate the applicability of the 2015 Act was foreclosed by the findings rendered by the learned Sole Arbitrator.
7. Shri P.A. Kholkar, learned Advocate for the respondent submitted at the outset that the Writ Petition to challenge the order was not tenable since an Arbitral Tribunal as defined under Section 2(d) of the 1996 Act was not a Court and as defined under Section 2(e) thereof. The placed reliance in Alka Chandewar v/s. Shamshul Ishrar Khan, (2016) 1 MhLJ 52, to buttress his contention and submitted that the remedy of Writ Petition was not available to the petitioner. He placed reliance on a Full Bench judgment of the Hon'ble Apex Court in S.B.P. & Co. v/s. Patel Engineering Ltd. and Anr., (2005) 8 SCC 618, in the same context, referred to Section 5 of the Arbitration and Conciliation Act and also placed reliance in an unreported judgment of the Hon'ble Apex Court in Ranjit Projects Pvt. Ltd. V/s. Gujarat State Road Development Corporation Ltd. and Ors. [Civil Appeal No.12488 of 2017].
8. Shri P.A. Kholkar, learned Advocate for the respondent further referred to Section 26 of the Amendment Act 2015, relied in Board of Control for Cricket in India v/s. Kochi Cricket Pvt. Ltd. and Others, (2018) 6 SCC 287, apart from adverting to provisions of Sections 7 and 16 of the Arbitration Act 1996. It was his contention that a party could not confer jurisdiction on the Court and in that context placed reliance in East India Hotel Ltd. and another v/s. Corporation of Calcutta and Others, (1988) AIR Calcutta 104, Jagmittar Sain Bhagat and Others v/s. Director, Health Services, Haryana and Others, (2013) 10 SCC 136 and Girish Manubhai Parekh v/s. M/s. Continenral Steel Corporation and Ors., (2009) 2 ArbLR 138, while pressing for the dismissal of the petition both on its maintainability and merits.
9. Shri Pravin Faldessai, learned Additional Government Advocate in reply submitted that there was no basis in the contention on behalf of the respondent that the Writ Petition was not maintainable as it would do violence to Article 226 and 227 of the Co
