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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Dholera Industrial City Development Limited – Petitioner
Versus
M/s SPML Infra Ltd. – Respondent
Special Civil Application No. 20116 of 2022
Decided On : 04-08-2023
Constitution of India, 1950 – Articles 226, 227 –Arbitration and Conciliation Act, 1996 – Section 21 – Gujarat Pubic Works Contracts Disputes Arbitration Tribunal Act, 1992 – Section 21 – Dholera Special Investment Region – Lack of inherent jurisdiction – Arbitral Tribunal – Held, Court has examined matter on merits also and is in agreement with observations made by Tribunal as reproduced here-in-above that point with regard to lack of inherent jurisdiction can be decided with all other issues and question of deciding same as a preliminary issue would not arise as it would amount to doing action indirectly by petitioner company which it could not do it by filing an application under section 16(2) of Act, 1996 as order passed by Tribunal has remained as it is rejecting application to decide its jurisdiction under section 16(2) of Act, 1996 – Petition dismissed.
JUDGMENT :
BHARGAV D. KARIA, J.
1. Heard learned Senior Advocate Mr. Kamal B. Trivedi with learned advocate Mr. Premal R. Joshi for the petitioner and learned Senior Advocate Mr. R.S. Sanjanwala with learned advocate Mr. P.M. Buch for the respondents.
2. Feeling aggrieved by order dated 19.09.2022 passed by the Arbitral Tribunal in Arbitration Case No. 7 of 2021 whereby the application filed the petitioner to decide the issue of jurisdiction as a preliminary issue has been dismissed, the petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India.
3. The factual matrix of the matter is that the petitioner herein - Special Purpose Vehicle of the State Government was formed on 28.01.2016 with equity participation of 49% through Centre and 51% of through State Government for procurement and construction of trunk infrastructure of Dholera Special Investment Region (“DSIR”).
3.1 The petitioner floated a tender on 15.04.2016 inviting offers to undertake the Design, Construction, Operation and Maintenance of (i) Water Treatment Plant (WTP), (ii) Clear Water Reservoir and (iii) Potable Water Transmission Main and Master Balancing Reservoir (potable water) in DSIR.
3.2 The respondent company participated in the tender and its offer was found to be the lowest and therefore, Letter of Award was issued on 16.08.2016 by the petitioner company in favour of the respondent.
3.3 Thereafter Works Contract was executed on o9.09.2016 between the petitioner company and the respondent for the execution of the work in question.
3.4 The petitioner company terminated the Works Contract on 01.01.2021 in terms of clauses 23.1.1(c) and (f) of the Contract, in view of there being a gross delay caused by the respondent in completion of the contract work.
3.5 Respondent issued a notice dated 16.02.2021 under section 21 of the Arbitration and Conciliation Act, 1996 (For short “the Act, 1996”) requesting reference of disputes arising out of contract to arbitration and also appointed Hon’ble Mr. Justice C.K. Thakkar as its nominee in the Arbitral Tribunal.
3.6 The petitioner appointed Hon’ble Ms. Justice Harsha Devani as its nominee in the Arbitral Tribunal on 12.03.2021. Thereafter Hon’ble Mr. Justice K.S. Jhaveri was appointed as the Presiding Officer of the Arbitral Tribunal (For short “the Tribunal”) by both the learned arbitrators.
3.7 The respondent company filed its Statement of Claim on 01.07.2021 and the petitioner company filed its Statement of Defence and Counter Claim on 15.09.2021. Respondent filed its rejoinder to the Statement of Defence and Counter Claim of the petitioner company on 22.11.2021.
3.8 Between 2.11.2021 to 30.01.2022, both the sides filed their respective applications for interim award under section 31(6) of the Act, 1996 in respect of work already done in respect to which the Tribunal directed to provide information in respect of undisputed claim while fixing the hearing of the said applications for hearing on 26.02.2022.
3.9 The petitioner company filed an application dated 25.02.2022 under sub-section (2) of section 16 of the Act, 1996 read with section 21 of the Gujarat Pubic Works Contracts Disputes Arbitration Tribunal Act, 1992 (For short “the Act, 1992”) questioning the jurisdiction of the Tribunal on the ground that the dispute pertains to Works Contract between a pubic undertaking and the contractor and therefore, the same is to be adjudicated by the statutory Tribunal under the Act of 1992.
3.10 The Tribunal by order dated 14.07.2022 dismissed the application filed by the petitioner under section 16(2) of the Act, 1996 mainly on the ground that the same was filed after filing of Statement of Defence and the delay in raising the plea was not justified and fixed the further hearing on merits.
3.11 Being aggrieved by order dated 14.07.2022, the petitioner company filed Special Civil Application No. 14481 of 2022. This Court (Coram: Hon’ble Ms. Justice Vaibhavi D. Nanavati,) passed the order dated 28.07.2
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