IMPORTANT POINT
The court established that challenges to an arbitrator's jurisdiction under Section 16 can only be raised after a final award, not as an interim appeal.

JUDGMENT :

Sunita Agarwal, C.J.

1. The instant appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (in short as "the Act' 1996") is directed against the judgement and order dated 01.04.2019 passed by the Judge, Commercial Court, in the proceedings under Section 34 of the Act' 1996 wherein the order dated 03.08.2018 passed by the learned Arbitrator in arbitration proceeding between the parties herein, had been challenged.

2. The order impugned dated 03.08.2018 had been passed by the learned Arbitrator under Section 16 of the Act' 1996 wherein the competence of the Arbitrator to enter into the reference to proceed for arbitration was challenged on the ground that the claim of the respondent-claimant, viz. Abhinav Knowledge Services Private Ltd. was barred by the principles of res judicata as well as under the provisions of Order 2 Rule 2 CPC.

3. The said application Exhibit 7 was rejected by the learned Arbitrator holding that the issues raised in the arbitral proceedings before it were not subject matter of inquiry in the earlier proceedings. The counter claim filed by the respondent-claimant was not considered on merits in the previous proceedings, inasmuch as, it was not entertained in view of the limited reference made to the learned Arbitrator.

4. The order of rejection of the preliminary objection filed by the Appellant herein had been subjected to challenge in the proceedings under Section 34 of the Act' 1996 on the premise that the order of rejection of the application under Section 16 of the Act' 1996 being an interim award, is amenable to Section 34 of the Act' 1996. It was argued that the dispute between the parties had been settled with the award dated 02.07.2014 rendered in previous proceedings between the parties pertaining to the same contract. The second proceeding in the same matter is not permissible.

5. The learned Judge, Commercial Court, noticing the contentions of the learned counsels for the parties, had recorded that in view of the judgment of the Apex Court in SBP & Co. v. Patel Engineering Limited [(2005) 8 SCC 618], the order passed under Section 16 is amenable under Section 34 of the Act' 1996, at the time of challenging the final award. In the present case, no final award had been passed. The application challenging the order dated 03.08.2018 is premature and not entertainable.

6. The main issue before us is about the maintainability of the application under Section 34 of the Act' 1996 challenging the order passed under Section 16 of the said Act. The consequential question would be as to whether the learned Commercial Court has erred in holding that the appropriate stage to challenge the order passed under Section 16 pertaining to the jurisdiction of arbitral tribunal would be after passing of the final award by invoking the provisions of Section 34 of the Act' 1996.

7. We may note that, in the instant case, the jurisdiction of the learned Arbitrator was challenged under Section 16 of the Act' 1996 on the ground that pertaining to the agreement dated 24.10.2011, executed between the parties, the matter was earlier referred to the learned Arbitrator by mutual consent of the parties. The learned Arbitrator made an Award dated 02.07.2014 and the said Award has been implemented. The payment made to the respondent-claimant under the Award had been received by it without demur. No further dispute pertaining to the agreement dated 24.10.2011 would, thus, be maintainable. It was urged that the respondent-claimant ought to have raised all disputes at the relevant point of time in one proceeding before the Arbitrator. Having not done so, the dispute now raised was barred by the principles of constructive res judicata and principles of multiplicity of litigation under Order 2 Rule 2 CPC. The respondent-claimant did not raise any dispute pertaining to termination of the agreement and agreed to the said situation. No cause of action, thus, survives for fresh proceedings, inasmuch as, all rights and obl