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2017 Supreme(Mad) 274

IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
Express Infrastructure Private Limited, Chennai - Appellant
Versus
B.L. Kashyap & Sons Limited, New Delhi & Others - Respondents
CRP PD. No. 619 of 2017 & C.M.P. No. 3180 of 2017
Decided On : 02-03-2017

Advocates Appeared:
For the Petitioner: AL. Somayaji, for G. Kalyan Jhabakh for M/s. Surana & Surana

Headnote:

Constitution of India Article 226 – Revision is filed as against the order passed in unnumbered interlocutory application in the matter of Arbitration related to the disputes between the parties – Facts of the case would run – (i) A Letter of Intent was entered into between the claimant /the first respondent herein and the respondent/petitioner herein qua works relating to Concrete and Block work package for the project "Express Mall", Chennai – Said Letter of Intent was followed up with the notice of Award and an articles of agreement – There were also extensions of time as agreed between the parties – (ii) Since disputes arose between the parties, the Arbitral Tribunal was constituted for adjudication of the disputes –Held, It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of being challenged – Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the Arbitral Tribunal acting of the Act – Party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal – Appears to be the scheme of the Act – Arbitral Tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties – Consequently, the connected miscellaneous petition is closed.

Judgment :-

1. The revision is filed as against the order dated 24.12.2016 passed in unnumbered interlocutory application dated 05.10.2016 in the matter of Arbitration related to the disputes between the parties.

2. The brief facts of the case would run thus:

(i) A Letter of Intent was entered into between the claimant /the first respondent herein and the respondent/petitioner herein qua works relating to Concrete and Block work package for the project "Express Mall", Chennai. The said Letter of Intent was followed up with the notice of Award dated 01.07.2007 and an articles of agreement dated 20.07.2007. There were also extensions of time as agreed between the parties.

(ii) Since disputes arose between the parties, the Arbitral Tribunal was constituted for adjudication of the disputes. The parties filed their respective claims before the Arbitral Tribunal and both the parties were also examined and documents also marked. On the side of the respondent, who is the petitioner herein, also documents were marked and the parties were examined and cross examined. After the completion of the evidence the matter was posted for arguments on 01.07.2016.

(iii) At that juncture, it was brought to the notice of the Arbitral Tribunal that additional documents have to be filed by the revision petitioner. It was stated that the said documents were to be filed to substantiate the Auditor Certificate and documents, which are already on record. It was further stated that as the documents were voluminous in nature and the summary was already available on record, it was not marked earlier. Therefore, there was no intentional omission in marking the said documents. Further after the arguments, were commenced, the revision petitioner had sought for permission to file such additional documents with the Tribunal.

3. As stated earlier, the arguments had already commenced. The Tribunal did not entertain the application and proceeded to hear the arguments. In the meanwhile, a counter was also filed in the said application. Thereafter, the application was taken up for hearing and orders were passed dismissing the application and the additional documents sought to be filed by the petitioner herein were refused to be taken up on file.

4. Challenging the said order of dismissal, the above revision is filed.

5. At the outset, this Court is not inclined to entertain the revision as the same is filed as against the order passed by the Arbitral Tribunal in an interlocutory application.

6. Inasmuch as the revision is filed under Article 227 of the Constitution of India, the powers of the High Court, the nature and scope and power of Article 227, which is supervisory in nature can be usefully seen.

7. The powers conferred under Article 227 is to ensure that all Subordinate Courts as well as statutory or Quasi Judicial Tribunal exercise the powers vested in them within the powers of their authority. It is the duty of the High Court to ensure that they all act in accordance with establishments of law. Normally the invocation of Article 227 of the Constitution is done when there is no revision or appeal is provided to the High Court. Therefore, the jurisdiction under Article 227 appears to be wider than the power given under Article 226 of the Constitution of India.

8. In (2010) 8 SCC 329 [Shalini Shyam Shetty and another vs.Rajendra Shankar Patil], the Hon'ble Supreme Court has in detail discussed the jurisdiction of the High Court under Article 227 of the Constitution of India. The relevant paragraph reads as follows:

"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The histor




















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