- (1.) B. S. Verma, J. Heard Sri S. K. Jain learned coun sel for the applicant as well as Sri Sachin Datta, learned counsel for the opposite-party (respondents ).
(2.) RELEVANT facts of the case are that the petitioner moved an application under Section 11 of the Arbitration and Conciliation Act 1996, for appointment of an arbitrator for settlement of dis putes between the parties, which was registered as Civil Arbitration Application No. 14 of 2004, which was allowed vide order dated 25-5-2005 and the Arbitra tor was required to submit its award within a period of six months. However, since the period of six months already (sic, expired) before conclusion of the proceedings before the Arbitrator on 25-11-2005, the applicant moved Time Extension Application No. 1998 of 2006 on 2/-2-2006 with a prayer that some more time be allowed to the Arbitrator to conclude the proceedings and give the award. The application was opposed by the respondent by filing objection (paper no. 3820 of 2006) on 29-3- 2006 stating therein that vide order dated 25-5-2005, by an administrative order of the Court, Arbitrator was appointed. According to them, the claims referred to the Arbitra tor being not maintainable and the ref erence to Arbitrator being not in accord ance with law, the respondents filed an application under Section 16 of the Said Act. Before deciding the objection of the respondents, the time allowed to the Sole Arbitrator had expired. It is stated that the Apex Court in the case of S. B. P and Co. V. Pa*el Engineering Ltd. [ (2005) 8 SCC, page 618], the verdict given in Konkan Railway Corporation Vs. Rani Corporation [ (2002) 2 SCC, 3388] was overruled and it was held that the nature of jurisdiction exercised un der Section 11 of the said Act is judi cial in nature and the Court is required to record its finding upon the maintainability of the Claims by the Ar bitrator. In view of the case law [ (2005) 8 SCC, Page 618] supra, it has been sub mitted that this Court is bound to con sider and adjudicate upon the maintainability of the claims by the Ar bitrator, I have heard submissions made by the learned counsel for the rival par ties and perused the material on record including the verdict of the Apex Court on the subject.
(3.) IT was vehemently argued by the counsel for the respondents that the ap plicant has nowhere mentioned in the application as to whether the condition for exercise of power under Section 11 of the Arbitration and Conciliation Act, 1996 are satisfied or not. Therefore, the prayer sought for is not in accordance with law and hence the same deserves to be rejected. IT was further, submitted that the present application has to be considered on touch stone of the law Said down by the Hon'ble, Apex Court in S. B. R Vs. Patel Engineering Ltd. [ (2005) 8 S. C. C. , Page 618. On the other hand, it was submitted by the applicant's counsel that the argument of the learned counsel for the respondents is misconceived consid ering the fact that the application be decided in terms of the judgment of the Apex Court (supra) because the verdict of the Apex Court has prospective effect and not retrospective, as has been held in paragraph No. 47 (x) of the judgment which reads that "since all were guided by the decision of this Court in Konkan Rly. Corpn, Ltd. v. Rani Construction (P) Ltd. 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 be ing left to be decided under Section 16 of the Act As and from this date, the position as adopted in this judgment will govern even pending applications under Section 11 (6) of the Act. "the submis sion of the learned counsel for the ap plicant has force.;