NARENDRA NATH TIWARI, J. - (1.) THIS civil revision application is against the order dated 29.5.2004 passed by Sub -Judge 1st at Jamshedpur in Misc. Case No. 3 of 2004, whereby the learned Court below has rejected the miscellaneous case filed by the petitioner under Section 14(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to be as the said Act).
(2.) ACCORDING to the petitioner, regarding excavation of residual work of Chandil Left Bank Main Canal, there were two agreements between the petitioner and M/s. Himachal Construction Company Pvt. Ltd. In the terms of the agreement there was provisions for settlement of dispute by referring the same to the Executive Engineer and thereafter to file appeal before the Superintending Engineer and on their failure or in case of any grievance against the order for reference of the dispute to the Arbitrator. The grievance of the petitioner is that without exhausting the said provision of referring the dispute for settlement departmentally, the dispute has been referred to the Sole Arbitrator, one Suresh Mishra. It was stated that under the said clause of settlement of dispute an appeal was preferred before the Superintending Engineer after the order of the Executive Engineer, but without waiting for his decision, the opposite party hastened to invoke the Arbitration clause, by appointing the said Arbitrator. It was contended that the Arbitrator has thus no jurisdiction to arbitrate the dispute during pendency of the appeal before the Superintending Engineer. Aggrieved by the Arbitral proceeding, the petitioner preferred Misc. Case No. 3 of the 2004 in the Court of Sub -Judge 1st, Jamshedpur under the provisions of Section 14 (2) of the Act. In the Court below, the opposite party appeared and filed its objection challenging the very maintainability of the said petition. The Court below heard the maintainability point and passed the impugned order dated 29.5.2004 holding that the question raised in the miscellaneous petition can very well be raised before the Arbitrator in view of the provisions of Section 16 of the Act including the objection regarding the jurisdiction of the arbitrator to arbitrate the dispute. The learned Court below also discussed and considered several decisions of the Supreme Court cited by the parties and came to the finding that in view of the pendency of the arbitration, the Civil Court has no jurisdiction to entertain the petition and decided the nature of objection raised in the same as all the objections are to be raised before the Arbitrator. The Court below, thus, dismissed the petition. Mr. Shamim Akhtar, learned counsel appearing on behalf of the petitioner submitted that the Court below has committed error of law as well as on facts by not considering the case of the petitioner in proper perspective. According to the learned counsel, it has been held in M.K. Sah Engineers and Contractors V/s. State of M.P., (1999) 2 SCC 594, that in case where the reference to arbitration was required to be preceded by a decision of the Superintending Engineer, the steps preceding the same can be waived and if one party on its own conduct or the conduct of its officials disabled such preceding step, it will be deemed that the procedural prerequisites were waived and in that case the party at fault cannot be permitted to set up the bar of non - performance of pre -requiste obligation so as to exclude the applicability of the arbitration clause. Learned counsel further relied on a decision of Delhi High Court in Shyam Telecom Ltd. v. ARM Ltd., (2004) 3 Arb. LR 146, wherein it has been held that the arbitrator 'spower and authority are governed and controlled by the terms of the arbitration agreement. Unless parties agree to the contrary, the terms of arbitration agreement must operate in full. The consequence of the arbitrator not concluding the proceeding and rendering the award within the period prescribed under the arbitration agreement as in the present case would unclothe the arbitrator of his legal authority to continue with the proceedings unless the parties agree to extend the period of making the award or a party waives his right to such an objection. Learned counsel submitted that in the instant case, since at the relevant time, the appeal was pending before the Superintending Engineer, the arbitration clause could not be invoked. Learned counsel urged that the said aspects were not taken into consideration by the Court below while passing the impugned order. The said order of the learned Court below is, thus, passed in illegal exercise of jurisdiction and is not sustainable in law.
(3.) MR . Rajiv Ranjan, learned counsel appearing on behalf of the opposite party, on the other hand, submitted that the nature of objection raised by the petitioner is a matter to be decided by the arbitrator himself. Learned counsel submitted that whether the arbitrator has got jurisdiction to arbitrate the dispute or not can, itself, be raised before and decided by the arbitrator under the provisions of Sec.16 of the said Act. Learned counsel submitted that there are number of decisions of the Supreme Court in support of the said proposition and the recent decisions are rendered in Food Corporation of India v. Indian Council of Arbitrators and Ors., 2003 (3) JCR 170 (SC) : 2003 (6) SCC 564 and in case of Hindustan Petroleum Corporation Ltd. V/s. Pink City Midway Petroleum, 2003 (3) PLJR 83 (SC) : 2003 (4) JCR 140 (SC). According to him, there are other decisions including a decision of the Constitution Bench of the Supreme Court in Konkarn Railway Corporation Ltd. V/s. Rani Constructions Pvt. Ltd., 2002 (2) SCC 388, which support the view taken by the Court below and there is absolutely no illegality in the impugned order.;