Back
High Court of Judicature at Calcutta
PRASENJIT MANDAL, J.
National Council of Science Museums (NCSM)
Versus
M/S. Bridge & Roof Company (India) Ltd.
C.O. No. 3147 of 2010
Decided on: 24-09-2012
ARBITRATION - JURISDICTION - APPELLATE AUTHORITY - MAINTAINABILITY OF APPLICATION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA - WHETHER MAINTAINABLE WHEN THE APPELLATE AUTHORITY IS SITUATED OUTSIDE THE JURISDICTION OF THE HIGH COURT.
Fact of the Case:
The petitioner challenged an award passed by an arbitral tribunal and an appellate order passed by the Law Secretary, who acted as the Appellate Authority under an arbitration agreement. The petitioner contended that the Appellate Authority lacked jurisdiction as he had retired and was acting as an Advisor to the Minister of Law when he passed the appellate award. The petitioner also contended that the clubbing of three separate agreements in one arbitration proceeding was not justified.
Finding of the Court:
The court held that the application under Article 227 of the Constitution of India was not maintainable as the Appellate Authority was situated outside the jurisdiction of the High Court. The court relied on the decisions in Election Commission, India v. Saka Venkata Rao and Collector of Customs, Calcutta v. East India Commercial Co. Ltd., which held that a writ issued by the High Court cannot run beyond the territories subject to its jurisdiction.
Issues: 1. Whether the application under Article 227 of the Constitution of India was maintainable when the Appellate Authority was situated outside the jurisdiction of the High Court? 2. Whether the clubbing of three separate agreements in one arbitration proceeding was justified?
Ratio Decidendi: 1. The court held that the application under Article 227 of the Constitution of India was not maintainable as the Appellate Authority was situated outside the jurisdiction of the High Court. The court relied on the decisions in Election Commission, India v. Saka Venkata Rao and Collector of Customs, Calcutta v. East India Commercial Co. Ltd., which held that a writ issued by the High Court cannot run beyond the territories subject to its jurisdiction. 2. The court held that the clubbing of three separate agreements in one arbitration proceeding was not justified.
Final Decision: The court dismissed the application as it was not maintainable for want of territorial jurisdiction.
Prasenjit Mandal, J.
1. Challenge is to the award/order dated May 18, 2010 passed by the Advisor of Law Minister, Ministry of Law and Justice, New Delhi being the Appellate Authority in Appeal No.6 of 2007.
2. Three separate agreements dated March 18, 1994, September 7, 1994 and July 6, 1995 were the subject-matters of the arbitral award and then orders passed in appeal against the order of the arbitral Tribunal are now under consideration before this Court.
3. The first agreement dated March 18, 1994 lays down in Clause No.44 to the effect that all questions and disputes relating to the meaning of the specifications, designs and other matters relating to claim, right, matter or thing whatsoever arising out of the contract, etc., shall be referred to the sole arbitration of a person nominated by the Director General, National Council of Science Museums and if the former is unable or unwilling to act to the sole arbitration, of some other person appointed by the Director General, NCSM willing to act as such arbitrator and the submission shall be deemed to be submission to arbitration under the meaning of the Arbitration Act, 1940.
4. The second agreement dated September 7, 1994 lays down the arbitration clause in Paragraph No.6 of the agreement to the effect that in the event of any dispute or difference relating to the interpretation and application of the provisions of contract, such dispute or difference shall be referred by either party to the arbitration of one of the arbitrators in the Department of Public Enterprises to be nominated by the Secretary to the Government of India, In-charge of the Bureau of Public Enterprises. The Arbitration Act, 1940 shall not be applicable to the arbitration under this Clause. The award of the arbitration shall be binding upon the parties to the dispute, provided, however, any party aggrieved by such award may make a further reference for setting aside or revision of the award to the Law Secretary, Department of Legal Affairs, Ministry of Law and Justice, Government of India. Upon such reference, the dispute shall be decided by the Law Secretary or the Special Secretary/Additional Secretary when so authorized by the Law Secretary, whose decision shall bind the parties finally and conclusively.
5. In the third agreement under LOI dated July 6, 1995, there is no arbitration clause at all.
6. Accordingly, Mr. Brijender Singh Meena, Joint Secretary and Government Counsel, Government of India, was appointed as sole arbitrator by the Department of Public Enterprises in connection with the reference dated January 6, 2006. The said reference involved the disputes under the three separate agreements referred to above by the opposite party. The petitioner contested the reference by filing the statement of defence and their counterclaim. After contested hearing, Mr. Brijender Singh Meena published the award dated September 18, 2007. Being aggrieved by the said award, the petitioner made an application for setting aside the award before the Law Secretary in terms of the agreement dated September 7, 1994. The then Law Secretary, Department of Legal Affairs, Ministry of Law and Justice, Mr. T.K. Viswanathan dealt with the appeal as per clause 6 of the agreement dated September 7, 1994 and completed the hearing of the parties on March 22, 2009 but reserved his judgment for more than an year and made and published the appellate award dated May 18, 2010. By that time, he retired and he signed the appellate award in the capacity of Advisor to Law Minister, on superannuation. The Secretary of Ministry of Law and Justice, Government of India shall be Persona Designata under the arbitration clause and as such, on his superannuation, he was denuded of his power to act as Appellate Authority and became functus officio and thus, had no legal authority to make and publish an award as he had done so as Advisor to the Minister of Law, on superannuation. There is no provision for second appeal as per arbitra
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
