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Gujarat High Court
Judgename :M.R.SHAH
EXECUTIVE ENGINEER SARDAR SAROVAR NARMADA NIGAM - Appellant
Versus
BHAVEN CONSTRUCTION - Respondent
SPECIAL CIVIL APPLICATION 400 of 2002
Decided On : 12/29/2005
Sole Arbitrator - Appointment of - Challenge to appointment and jurisdiction - Sustainability - Finding as to.
Head Note :
Arbitration and Conciliation Act, 1996 (Central Act 26 of 1996) - Sections 11(6), 16, 16(4), 34 and 37 - Arbitration Tribunal Act, 1992 - Sections 2(k), 8(1) and 21 - Sole Arbitrator - Appointment of - Challenge to appointment and jurisdiction - Sustainability - Finding as to - Subsequent to appointment of Respondent No. 2 as sole arbitrator he rejected the application submitted by petitioner under Section 16 of the Act of 1996 by holding that he has got the jurisdiction to decide and resolve the dispute between the parties and that his appointment as Sole Arbitrator is legal and valid - The said order of Sole Arbitrator is passed under Section 16(4) of the Act of 1996 and it is not open to challenge by way of application before the Court under its discretionary jurisdiction - The only remedy available to the petitioner is to wait till the award is passed and then to challenge the order under Section 34 of the Act of 1996 - Court held, that all question with regard to jurisdiction, appointment of Respondent No. 2 as a Sole Arbitrator including all contentions which are raised in the present civil application shall be open for petitioner to be raised while challenging the award - Constitution of India, 1950 - Articles 226/227.
Held :
Considering the order passed by the Sole Arbitrator passed under Section 16(4) of the Act dismissing the application submitted by the petitioner challenging the jurisdiction of Respondent No. 2 as a Sole Arbitrator and challenging his appointment as a Sole Arbitrator, it is to be held that the petition under Articles 226 and 227 of the Constitution of India against the said order is not maintainable and/or the same is not required to be entertained and the only remedy available to the petitioner is to wait till the award is passed by the learned Sole Arbitrator and to challenge the same under Section 34 of the Act. In view of the above, the judgments cited at the Bar on behalf of the petitioner are not applicable to the facts of the present case as this Court is not required to decide the case on merits. At present and as stated above, the petitioner has to wait till the award is passed by the Sole Arbitrator and the challenge is made under Section 34 of the Act. However, all the questions with regard to jurisdiction, appointment of Respondent No. 2 as a Sole Arbitrator, whether the Arbitration Act of 1992 is applicable or not and/or whether it can be considered to be a "Works Contracts" or not, are kept open and it will be open for the petitioner to raise all the aforesaid contentions inclusive of all the contentions which are raised in the present Special Civil Application at the time of challenging the award under Section 34 of the Act. [Para 7]
Law Laid Down :
After the decision of Sole Arbitration petitioner has to wait till award is passed and then to challenge the same.
Case Law Analysis :
G.C. Kanungo vs. State of Orissa, AIR 1995 SC 1655 [Para 2];; Sorathiya Velji Ratna & Co. vs. Gujarat Agricultural University, Dantiwada Campus & Anr., 2001 (1) GCD 176 [Para 2].-Distinguished
Konkan Railway Corporation Limited & Ors. vs. M/s. Mehul Construction Company, 2000 (7) SCC 201 [Para 4];; M/s. S.B.P. and Company vs. Patel Engineering Limited and Anr., 2005 (8) SCC 618 [Para 4].-Relied on
Conclusion :
Impugned order passed by Sole Arbitrator dismissing the application submitted by petitioner is not open to challenge under Articles 226 and 227 of the Constitution of India.
Decided in Favour of :
Respondent
Petition Dismissed
( 2 ) IT appears from the record that the petitioner ? Sardar Sarovar Narmada Nigam limited entered into a contract with the respondent No. 1 ? contractor to supply the bricks as per the specifications and in numbers for the construction of the canal work. It appears from the record that the tender was accepted on 13-2-91, which was revised on 18-10-91, but due to the modified technical specifications, the work order was issued on 18-10-91 and further revised on 30-11-93, due to further modification of technical specifications. The agreement was executed between the petitioner and respondent No. 1. As per the terms of the agreement, respondent No. 1 was required to supply the bricks within 24 months i. e. on or before 17-10-93. It appears that there was a dispute between the petitioner and respondent No. 1 about the payment and respondent No. 1 invoked the arbitration clause stipulated in the agreement and asked the petitioner vide notice dated 13-11-98 to appoint the Arbitrator. It is the contention on behalf of the petitioner that vide reply dated 23-11-98 the petitioner informed respondent no. 1 ? contractor that the Arbitration Tribunal is appointed by the Government, so the dispute should be referred to the Tribunal and therefore the question about the appointment of Sole Arbitrator does not arise. It appears from the record that thereafter some further exchange of correspondence made between the petitioner and respondent No. 1. It is the contention on behalf of the petitioner that the contractor did not approach the Gujarat Public Works Contracts Disputes arbitration Tribunal to resolve the disputes but, appointed Sole Arbitrator. Thereafter, the learned Sole Arbitrator initiated the proceedings and gave notice to the petitioner for appearance and filing the statement of claim. It appears from the record that the petitioner filed Civil Suit No. 312/98 in the court of learned Civil Judge (SD), Vadodara restraining respondent NO. 2 ? Sole arbitrator from proceeding further with the arbitration proceedings. Initially the learned trial court granted the interim injunction, however, subsequently after hearing both the parties, the same came to be vacated. Being aggrieved by and dissatisfied with the order passed by the learned trial court passed below exh-5 in vacating the interim injunction, the petitioner preferred appeal no. 175/2000 before the learned District Court, Vadodara and the said appeal also came to be dismissed. It appears that thereafter the petitioner submitted an application before the learned Sole Arbitrator purported to be under Section 16 of the Arbitration and Conciliation Act, 1996 (for short "the Act") to decide the question of its own jurisdiction and his appointment as a Sole Arbitrator and the learned Sole Arbitrator ? respondent No. 2 herein by impugned order dated 20-10-2001 dismissed the said application by holding that he has got the jurisdiction to decide the disputes and that his appointment as Sole Arbitrator by respondent No. 1 is legal and valid. Being aggrieved by and dissatisfied with the order passed by the learned Sole Arbitrator dated 20-10-2001 the petitioner has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India for the aforesaid reliefs.
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