2002 Supreme(Guj) 873

Gujarat High Court
Judgename :D.H.WAGHELA, K.R.VYAS
NIRMA LIMITED - Appellant
Versus
LURGI ENERGIE UND ENTSORGUNG GMBH - Respondent
Civil Application 6301 of 2002
Decided On : 12/19/2002

Headnote:

Arbitration and Conciliation Act, 1996 - Section 37 - Code of Civil Procedure - Section 96, 34, 31 - English Arbitration Act, 1996 - Section 67, sub-sections (4) and (5) - Constitution of India - Articles 28(6), XV - Arbitration and Conciliation Act read with Section of the Code of Civil Procedure is preferred from the judgment and order of the learned District Judge Civil Miscellaneous Application filed by the appellant herein for setting aside first Partial Award of the International Court of Arbitration of the International Chamber of Commerce (ICC) in ICC Arbitration Case between the appellant and the respondent No. 1 herein - Respondents herein are the members of the Arbitral Tribunal. For the sake of convenience, the appellant (original petitioner) is described hereinafter and the respondent No. 1 is described - Impugned judgment rejecting the prayer to set aside the award held the application to be not maintainable on the ground that the impugned arbitral award only refuses to accept the plea of jurisdiction raised by and such decision of the arbitral tribunal could not be said to be an interim or partial award for the purpose of Section - Arbitration shall be London and arbitration proceedings shall be carried out in English - Agreement shall be governed according to the laws of India and thereafter a wholly owned subsidiary of entered into other agreements for engineering supply erection and commissioning of boilers for which technical know-how was to be given by LURGI to NIRMA under the aforementioned agreement. Differences and disputes had arisen during the operation of those subsequent agreements and arbitration proceedings were commenced in India in which parties on both sides made claims and counter-claims - During the pendency of such arbitration proceedings invoked arbitration under the first know-how and Supervision Agreement for an award in substance, directing as shortfall in the contract value on account of extra work and on account of escalation of costs each with interest per annum and costs of the arbitration proceedings - This was alleged to be a counter-blast to the arbitration commenced in India at the instance of upon the latter arbitration getting under way, the of the ICC transmitted after hearing the parties - Partial Award under Section 34 of the Act was turned down only on the ground that that award was in essence a decision on the plea that the arbitral tribunal did not have jurisdiction or was exceeding the scope of its authority and the scheme of the Act did not permit challenge to such a decision where the arbitral tribunal had not accepted the plea challenge to jurisdiction of the arbitral tribunal was not examined on merits and the contentions of the parties in the present appeal were also, therefore, restricted to maintainability of the application - Held, Court hearing the matter was constrained to make the following order our sincere efforts and even by giving, out-of-turn priority to this part-heard matter which has 8 big volumes having nearly pages in each one over and above two voluminous dockets constituting Special Bench by the Chief Justice the submission of such an application manifests in all probability if not unpleasant a song of hidden sentiments and invisible for some acrimony and it is in this context - Both deliberated upon and after close scrutiny that it is incumbent and not expedient only to refer to the Chief Justice for passing appropriate order for the special assignment to any other Division Bench since this matter is now not to be treated as part-heard and not to be placed before although the learned counsel fully cooperated in finishing the entire final hearing within three days before this Bench to which the matter was assigned as also in concentrating only on the relevant contentions and material we note with regret the consumption of considerable time of two Benches of this Court by referring to the voluminous record unnecessarily unloaded in the court which would necessarily result into relegation of all other urgent and important matters not to mention the matters awaiting final hearing since decades - This epilogue is essential and of some instructive value inasmuch as it has a bearing upon the strength and burden of judiciary ethics of advocacy and the alacrity of the legislature in making clarificatory amendments which can go a long way in eliminating unnecessary and arduous litigations - We also note the sincere efforts made by the learned counsel in minimising the area of difference for an over-all out-of-Court and out-of-arbitration settlement which, at one stage appeared feasible and within reach but which course could not be fully pursued in the Court for want of time - Appeal is dismissed with the above observations with no order as to costs. The Civil Applications filed in this appeal are also accordingly rejected and the interim relief stands vacated. At this stage the learned counsel for the appellant requested to extend the interim relief which was operating till - We are not inclined to accept the request and accordingly that prayer is also rejected.