P. K. BALASUBRAMANYAN, J.

( 1 ) LEAVE granted in SLP (C) Nos. 3205/ 2004, 14033-14034/2004, 21272-273/2002. What is the nature of the function of the Chief Justice or his designate under section 11 of the Arbitration and conciliation Act, 1996 is the question that is posed before us. The three judges bench decision in Konkan Rly. Corpn. Ltd. v. Mehul Construction Co. as approved by the Constitution Bench in Konkan Railway corpn. Ltd. and anr. v. Rani Construction pvt. Ltd. has taken the view that it is purely an administrative function, that it is neither judicial nor quasi-judicial and the chief Justice or his nominee performing the function under Section 11 (6) of the Act, cannot decide any contentious issue between the parties. The correctness of the said view is questioned in these appeals.

( 2 ) ARBITRATION in India was earlier governed by the Indian Arbitration Act, 1859 with limited application and the second Schedule to the Code of Civil procedure, 1908. Then came the arbitration Act, 1940. Section 8 of that act conferred power on the Court to appoint an arbitrator on an application made in that behalf. Section 20 conferred a wider jurisdiction on the Court fof directing the filing of the arbitration agreement and the appointment of an arbitrator. Section 21 conferred a power on the Court in a pending suit, on the agreement of parties, to refer the differences between them for arbitration in terms of the Act. The Act provided for the filing of the award in court, for the making of a motion by either of the parties to make the award a rule of court, a right to have the award set aside on the grounds specified in the Act and for an appeal against the decision on such a motion. This Act was replaced by the arbitration and Conciliation Act, 1996 which, by virtue of Section 85, repealed the earlier enactment.

( 3 ) THE Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) was intended to comprehensively cover international and commercial arbitrations and conciliations as also domestic arbitrations and conciliations. It envisages the making of an arbitral procedure which is fair, efficient and capable of meeting the needs of the concerned arbitration and for other matters set out in the objects and reasons for the Bill. The Act was intended to be one to consolidate and amend the law relating to domestic arbitrations, international commercial arbitrations and enforcement of foreign arbitral awards, as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. The preamble indicates that since the United nations Commission on International Trade law (UNCITRAL) has adopted a Model law for International Commercial arbitration and the General Assembly of the United Nations has recommended that all countries give due consideration to the model Law and whereas the Model Law and the Rules make significant contribution to the establishment of a unified legal framework for a fair and efficient settlement of disputes arising in international commercial relations and since it was expedient to make a law respecting arbitration and conciliation taking into account the Model Law and the Rules, the account was being brought forward. The act replaces the procedure laid down in sections 8 and 20 of the Arbitration Act, 1940. Part I of the Act deals with arbitration. It contains Sections 2 to 43. Part II deals with enforcement of certain foreign awards, and Part III deals with conciliation and Part IV contains supplementary provisions. In this case, we are not concerned with Part III, and Parts II and IV have only incidental relevance. We are concerned with the provisions in Part I dealing with arbitration.

( 4 ) SECTION 7 of the Act read with Section 2 (b) defines an arbitration agreement. Section 2 (h) defines party to mean a party to an arbitration agreement. Section 4 deals with waiver of objections on the part of the party who has proceeded with an arbitration, without

Click Here to Read the rest of this document