G. S. Singhvi, J. - (1.) In compliance of the direction given by seven-Judge Bench in S.B.P. and Company vs. Patel Engineering Ltd. and another, (2005) 8 SCC 618, these appeals have been listed for disposal in the light of the principles laid down in that judgment.
(2.) In the special leave petitions, out of which these appeals arise, the appellants had challenged orders dated 3.2.2003 passed by the Division Bench of the Bombay High Court whereby it held that the writ petitions filed against the orders passed by the learned designated Judge of that Court appointing Shri Justice M. N. Chandurkar (Retired) as the third arbitrator for resolution of the disputes between the appellants and respondent No. 1 are not maintainable. For this purpose, the Division Bench relied upon the judgment of this Court in Konkan Railway Corporation Ltd. and others vs. Mehul Construction Company, (2000) 7 SCC 201, which was subsequently approved by a Constitution Bench in Konkan Railway Corporation Ltd. and another vs. Rani Construction Pvt. Ltd., (2002) 2 SCC 388. The ratio of the Constitution Bench judgment was that the power exercised by the Chief Justice or any person or institution designated by him under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, the Act) is purely administrative and the measures taken under that Section are not open to be challenged by the aggrieved party by resorting to intermediary proceedings. The judgment of the Constitution Bench was overruled by the seven-Judge Bench in S.B.P. and Company vs. Patel Engineering Ltd. and another (supra) and it was held that 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 a judicial power and not an administrative power and further that an order passed by the Chief Justice of the High Court or by the designated Judge of that Court can be challenged only under Article 136 of the Constitution.
(3.) After the judgment of the larger Bench, the appellants filed LA. Nos. 1 and 2 of 2006 for leave to amend the memorandums of appeal so as to enable them to make a prayer for setting aside orders dated 18.11.2002 passed by the learned designated Judge of the High Court in Arbitration Application Nos. 114 of 2002 and 90 of 2002. At the commencement of hearing of the appeals on 6.10.2009, the prayer of the appellants was granted.;