- (1.) AMITAVA Lala, J. This appeal arises out of a decision of the arbitral tribunal dated 21st December, 2004.
(2.) BY an order dated 22nd April, 2004 Hon'ble Mr. Justice Tarun Chatterjee, the then Hon'ble Chief Justice of the High Court of Judicature at Allahabad, was pleased to appoint Hon'ble Mr. Justice Anil Kumar Sen, former Chief Justice of High Court at Calcutta, as an Arbitrator under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'act') to adjudicate upon the dispute under reference. According to Mr. Anil Sharma, learned Counsel appearing for the appellant, the learned Arbitrator entered into the reference. Both the parties, i. e. , the appellant and State respondent had submitted to his jurisdiction. Even thereafter State had raised a dispute before the Arbitrator about the competency of the reference and his jurisdiction to be appointed as Arbitrator. The State had moved an application relying upon Clauses 34 and 44 of the agreement to establish that the Chief Engineer, Ganga Eastern Ganga, Moradabad is the final authority to adjudicate the dispute but not the learned Arbitrator appointed by the Court. Learned Arbitrator called upon the parties to place the application at first to decide the issue. In interpreting the aforesaid two clauses the Arbitrator held that only when situation under Clause 44 (c) will arise, the Court can intervene but not before. Learned Arbitrator further held that the objection cannot be considered as objection under Section 13 (2) of the Act, i. e. , challenge in relation to procedure in respect of the arbitration but in respect of maintainability of the reference and jurisdiction of the Arbitrator. Learned Arbitrator further held that Section 13 is correlated to Section 12, i. e. , grounds for challenge about impartiality etc. and since the present objection is not one contemplated by Section 12, the plea of the claimant/appellant is not acceptable. Therefore, the Arbitrator himself held that the reference is not competent in law and he has no jurisdiction to hold any adjudication on arbitration of the present dispute amongst the parties.
(3.) BY preferring this appeal, Mr. Sharma relied upon the various judgments to establish that the language of the aforesaid clauses of the agreement does not mean to say that the dispute cannot be referred to an independent Arbitrator by the High Court. In this line he relied upon 1980 (2) SCC 341, State of U. P. v. Tipper Chand; 1990 (1) Arb Law Reporter 251, State of West Bengal & Anr. v. Haripada Santra; AIR 1981 SC 479, Smt. Rukmanibai Gupta v. The Collector, Jabalpur & Ors. and AIR 2002 Bom 289, BASF Styrenics Pvt. Ltd. v. Offshore Industrial Construction Pvt. Ltd. & Anr. The last judgment is applicable to Act, 1996 which otherwise repeals the existence of the earlier Arbitration Act, 1940. BY showing such last judgment Mr. Sharma wanted to establish that there should not be a piecemeal decision but on all points at a time by the Arbitrator. Learned Standing Counsel appearing on behalf of the State contended that this appeal cannot lie directly before this High Court since it does not possess ordinary original civil jurisdiction unlike some other High Courts. Therefore, an appeal, from the order of the arbitral tribunal shall lie only in a principal civil Court of original jurisdiction of the concerned district. He has brought our attention to Section 37 of the Act, 1996 which is as follows : " (1) An appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely : (a) granting or refusing to grant any measure under Section 9; (b) setting aside or refusing to set aside an arbitral award under Section 34. (2) An appeal shall also lie to a Court from an order of the arbitral tribunal - (a) accepting the plea referred to in sub-section (2) or sub-section (3) of Section 16; or (b) granting or refusing to grant an interim measure under Section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this Section shall affect or take away any right to appeal to the Supreme Court. ";