- (1.) Learned Solicitor General of India Shri Harish Salve, appearing for the appellants, has submitted that the order dated 4-7-1997 of the learned Chief Justice of the Bombay High Court, under section 11 of the Arbitration and Conciliation Act, 1996 on the preliminary issue is a judicial order and, on facts, is liable to be set aside under Article 136 of the Constitution of India. It is contended that, even if it is to be treated as administrative in nature, it is amenable to Article 136.
(2.) The learned Chief Justice in his order dated 4-7-1997 [1997(4) Bom.C.R. 198] held that inasmuch as the appellant Company failed to appoint arbitrators as required under the arbitration clause, the appellants should be compelled to furnish a panel of names of arbitrators to the respondent Contractors and one name should be suggested by the appellants. The learned Chief Justice had also rejected the plea of the appellants that no reference be made as the matters were "excepted matters" and held that the question whether the claims related to "excepted matters" or not was also to be decided by the arbitrators after recording evidence and verifying the facts. Learned Solicitor General contends that such an order of the Chief Justice deciding rights preliminary points cannot be characterised as an administrative order.
(3.) The appellant is confronted with the three Judge Bench in (Konkan Rly. Corpn. Ltd. v. Mehul Construction Co.)1, 2001(1) Bom.C.R. (S.C.)771 : 2000(7) S.C.C. 201 : 2000(6) Scale 71, which has held that no appeal is maintainable under Article 136 against such an order passed by the Chief Justice directing appointment of arbitrators under section 11 inasmuch as such orders are administrative in nature even if they contain reasons and decision on certain preliminary issues raised by the parties at the stage of appointment of an arbitrator.;