- (1.) The expression " material irregularity" or " illegality " has a limited connotation. It means that the challenged order poses a problem about a material defect in the procedure adopted by the Court while dealing with the matter before it and not of either law or fact after the prescribed procedure was complied with.
(2.) In the light of above settled legal position, I proceed to examine the impugned order dated 8th November, 1996 passed by the District Judge, Jaipur City, whereby the application of the petitioner submitted under Section 11(6) read with Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) has been dismissed.
(3.) The Act 1996 has been enacted to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto; Section 8 of the Act 1996 is with regard to power to refer parties to arbitration, where there is an arbitration agreement. It provides that : 8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (l) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. " Section 11 (6) of the Act 1996 provides that : "(6) Where, under an appointment procedure agreed upon by the parties,-- (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. " Section 17 of the Act, 1996 pertains to the interim measures ordered by arbitral tribunal. It reads thus : "17. Interim measures ordered by arbitral tribunal. - (1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. (2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1). Section 42 of the Act, 1996 provides that notwithstanding anything contained elsewhere in this part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.;