Point of Law: An alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge

JUDGMENT :

BHARGAV D. KARIA, J.

1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged order dated 14th February, 2019 passed by the Arbitration Tribunal consisting of sole arbitrator (Hon’ble Mr. Justice J.M. Panchal-Former Judge, Supreme Court of India) whereby preliminary objections raised by the petitioner to decide as to whether the disputes between the parties is arbitrable or not is rejected.

2. Facts giving rise to this petition may be summarized as under:

2.1 A contract was executed on 5th December, 2014 between the petitioner and the respondent for the period between 15th January, 2015 to 31st March, 2017 for establishing a Customer Care Center and accordingly, the petitioner had outsourced customer call services to the respondent.

2.2 During the inspection checking on 29th September, 2016 carried out by the petitioner in the office of respondent, it was found that the respondent had manipulated its software program namely “C-Zentrix” to show an exaggerated number of persons logged in at the same time than actually appointed to address calls of the customers and by such manipulation in computer program, the respondent used to claim and raise false and inflated invoices based on exaggerated number of persons employed by the respondent for the petitioner’s service call centre. The petitioner on further inquiry came to know that two employees of the petitioner had in connivance with the respondent committed a fraud on the petitioner. A criminal complaint came to be filed against the respondent on 31st March, 2017 being I-CR No. 30/2017 for offences punishable under sections 408, 409, 120-B, 34 of the Indian Penal Code and sections 65 and 66 (D) of the Information and Technology Act, 2008. It is the case of the petitioner that the petitioner had already cleared the invoices till the scam came to light and thereafter, the petitioner stopped making monthly payment since the petitioner had paid much more than actually due to the respondent. It is the case of the petitioner that the petitioner continued to avail the services of customer care centre for approximately six weeks from the date of inspection i.e. up to 24th November, 2016. From 24th November, 2016, the petitioner started its own customer care centre.

2.3 Pursuant to criminal complaint, charge-sheet came to be filed on 7th September, 2018 before the Court of Ahmedabad Metropolitan Magistrate being Criminal Case No. 83453/2018.

2.4 It is the case of the petitioner that with a view to elude the criminal charges, the respondent issued notice on 30th May, 2017 for invoking arbitration clause that too after filing the quashing petition before this Court being Criminal Misc. Application No. 10891/2017. The petitioner gave reply to such notice on 25th July, 2017.

2.5 Thereafter, respondent filed petition under Section 11 of the Arbitration and Conciliation Act, 1996 (“the Act 1996” for short) for appointment of an arbitrator. This Court vide order dated 9th February, 2018 appointed retired Judge of this Court, Hon’ble Mr. Justice D.A. Mehta to resolve the disputes between the parties keeping all the contentions open to be considered by the learned arbitrator. Since the learned arbitrator resigned, this Court appointed Hon’ble Mr. Justice J.M. Panchal, former Judge of Supreme Court of India, as the sole arbitrator.

2.6 The respondent thereafter filed his statement of claim and the petitioner filed his counter claim against the same. The petitioner also made an application seeking certain documents from the respondent which is still pending for consideration by the learned arbitrator. The Arbitral Tribunal vide order dated 19th December, 2018 directed to take on record the preliminary statement of defense and counter claim and observed that it would be open for the petitioner to amend the same in accordance with law. After hearing the parties, the Arbitral Tribunal vide order dated 14th February, 2019, dismissed the preliminary ob