The Civil Court lacks jurisdiction to appoint an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.

ORAL ORDER

The petitioner has sought for quashing the order dated 05.12.2024 passed by the City Civil Court, Bangalore (CCH-16) in Execution Petition No.16/2023, by which, it rejected the objections raised by the petitioner that it had no jurisdiction to entertain the petition.

2. (i) The facts in brief are that the respondent herein filed O.S.No.59/2015 before the Senior Civil Judge, Hukkeri for recovery of a sum of Rs.9,48,497/-. The respondent filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 (henceforth referred to as 'the Act, 1996' for short) for appointment of an arbitrator. The Court after perusing the covenants contained in the agreement, held that there was a covenant in the agreement providing for resolution of disputes through arbitration. Accordingly, it allowed the application filed by the plaintiff and appointed an advocate as an arbitrator to settle the dispute. The arbitrator entered reference and passed an ex-parte award directing the petitioner to pay a sum of Rs.9,48,497/- along with interest at 12% per annum from 01.05.2015 till realization with cost. This award was sought to be executed in Execution Petition No.16/2023.

(ii) The petitioner herein entered appearance and filed objections to the Execution Petition contending that the award passed by the arbitrator was a nullity since his appointment was not in accordance with law. The Executing Court, held in terms of the impugned order that the petitioner had not taken any steps in accordance with law to challenge the award and that it had filed preliminary objections in the execution petition long after the award was passed and therefore, it rejected the objections filed by the petitioner in terms of the impugned order. The petitioner is therefore aggrieved by the aforesaid order and is before this Court challenging the said order.

3. The learned counsel for the petitioner contends that the Civil Court lacks jurisdiction to appoint an arbitrator under Section 11 of the Act, 1996, as it is only the Chief Justice or the designate of the Chief Justice who is entitled to appoint an arbitrator, more particularly when there is no consensus between the petitioner and the respondent over the appointment of an arbitrator and when there was no named arbitrator in the agreement. He contends that the award being a nullity in the eye of law could be challenged in any proceedings including incidental or collateral proceedings and the executing Court was bound to consider the same in accordance with law.

4. Per contra, the learned counsel for the respondent submitted that the claim before the Civil Court was just and proper, as disputes between the petitioner and the respondent were to be adjudicated by the Court in Hukkeri. He therefore contends that the invocation of the jurisdiction of the Court at Hukkeri is just and proper. However, he fairly conceded that the Civil Court, Hukkeri, had no authority in law particularly under Section 11 of the Arbitration and Conciliation Act, 1996 , to appoint an arbitrator. He also did not dispute the position of law that such invalid orders could be challenged even in collateral proceedings including in execution petition.

5. In view of the contention of the learned counsel for the respondent that the Civil Court did not have jurisdiction under Section 11 of the Act, 1996, nothing more needs to be gone into in this writ petition. However, once the impugned order is passed by the Executing Court is set aside, this Court is bound to set aside the unenforceable award passed by the arbitrator and restore the proceedings before the Civil Court, Hukkeri so that the same could proceed in accordance with law. It is however open for the petitioner or respondent to invoke the arbitr