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2016 Supreme(All) 2624
ALLAHABAD HIGH COURT
V.K. Shukla, Mahesh Chandra Tripathi, JJ.
Jagdish Singh - Appellant
Versus
Union of India And 4 Others - Respondent
Writ C No. 30202 of 2016
Decided On : 06-07-2016
For the Petitioner: Hari Narayan Singh, Om Prakash Singh, Punam Purwar, Sushil Kumar Rao.
For the Respondent: A.S.G.I., Archana Singh.
The central legal point established in the judgment is that when there is a specific provision for enforcement of an arbitration award under Section 36 of the Arbitration and Conciliation Act, 1996, that statutory provision must be invoked for enforcement.
Headnote:
Arbitration - Enforcement of Award - Arbitration and Conciliation Act, 1996
Fact of the Case:
The petitioner sought enforcement of an arbitration award dated 30.11.2016, which was being resisted by the respondent. The court considered the provisions of the Arbitration and Conciliation Act, 1996 and the specific remedy provided under Section 36 for enforcement of the award.
Finding of the Court:
The court found that the appropriate remedy for the petitioner was to invoke the remedy provided for under Section 36 of the Arbitration and Conciliation Act, 1996. The court held that it could not come to the rescue of the petitioner, but left it open for the petitioner to choose the forum as provided for under the law.
Issues: Enforcement of arbitration award, applicability of Section 36 of the Arbitration and Conciliation Act, 1996
Ratio Decidendi: The court emphasized that when there is a specific provision under Section 36 of the Arbitration and Conciliation Act, 1996 for enforcement of an award, that statutory provision must be invoked for enforcement. The court also highlighted that the claim of the petitioner and the objector should be objectively considered by the court concerned in accordance with the law.
Final Decision: The court disposed of the case, affirming that the petitioner's appropriate remedy was to invoke the remedy provided for under Section 36 of the Arbitration and Conciliation Act, 1996, and left it open for the petitioner to choose the forum as provided for under the law.
JUDGMENT
Jagdish Singh son of Sri Puran Singh is before this Court and his grievance is that the award dated 30.11.2016 passed by sole arbitrator is not at all being given effect to and, therefore, a request is being made to issue writ of mandamus directing the respondents no. 2, 3 and 4 to implement the said award in question. The second prayer that has been so made is to the effect that the respondents may be directed to give supply of the petroleum produce, i.e., MS/HSD regularly to the petitioner's retail outlet forthwith in pusuance of the award in question and last prayer is to direct the respondents not to interfere with the sales and supply of the diesel/petrol in the petitioner's retail outlet in pursuance of the said award in question.
2. On the matter being taken up, Sri Prakash Padia has placed reliance on the Judgment of Apex Court in AIR 2006 Supreme Court 450, M/S S.B.P. & Co. Vs. M/S Patel Engineering Ltd. & another, wherein the Hon'ble Apex Court has proceeded to take the following view in paragraph 46: -
"46. We, therefore, sum up our conclusions as follows:
i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11(6) of the Act is not an administrative power. It is a judicial power.
ii) The power under Section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another judge of that court and by the Chief Justice of India to another judge of the Supreme Court.
(iii) In case of designation of a judge of the High Court or of the Supreme Court, the power that is exercised by the designated, judge would be that of the Chief Justice as conferred by the statute.
(iv) The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the judge designated would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of Section 11(8) of the Act if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the judge designate.
(v) Designation of a district judge as the authority under Section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.
(vi) Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with orders passed by the arbitrator or the arbitral tribunal during the course of the arbitration proceedings and the parties could approach the court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.
(vii) Since an order passed by the Chief Justice of the High Court or by the designated judge of that court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court.
(viii) There can be no appeal against an order of the Chief Justice of India or a judge of the Supreme Court designated by him while entertaining an application under Section 11(6) of the Act.
(ix) In a case where an arbitral tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the arbitral tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act.
(x) Since all were guided by the decision of this Court in Konkan Railway Corpn. Ltd. & anr. Vs. Rani Construction Pvt. Ltd. [ (2002) 2 SCC 388 ] and orders under Section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or arbitral tribunals thus far made, are to be treated as valid, all objections being left to
