JUDGMENT
V.G. Palshikar, J.
1. By this petition the petitioners have challenged an order made by the learned single Judge of this Court in proceedings commenced under Section 11(6) of the Arbitration & Conciliation Act. 1996 (hereinafter referred to as the “said act”).
2. The claim of the petitioners is that there is an arbitration clause in the agreement between the petitioners and the respondents and therefore parties must resort to arbitration in case of dispute. However there is no failure on the part of the petitioners because of which provisions under Section 11 of the Act could be resorted to. According to Mr. M. S. Ganesh, learned counsel appearing on behalf of the petitioners the commencement of proceedings under Section 11 of the Arbitration Act itself is void ab initio, as no jurisdiction under that section could be invoked because there is no failure on the part of any of the parties to arbitration clause in relation to nomination of an arbitrator. According to the petitioners the clause itself provides for conducting arbitration proceedings in accordance with Indian Council of Arbitration Rules, according to which entire procedure is prescribed from the initiation of the arbitration by nominating arbitrators to culmination of an award. The arbitration in accordance with this clause therefore must take place under these rules and there is no question therefore of failure on the part of petitioners as contemplated under Section 11 of the Act. Basically on this contention it was urged that the order impugned is liable to be set aside. Several other contentions regarding correctness of order were raised.
3. Before the matter was taken up for hearing on merits of these contentions and objection was raised by Ms. Rajni Iyer to the entertainment of this petition by this Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution relying on certain judgments of this Court. According to her all these objections to the correctness of the order impugned are questions questioning jurisdiction of Arbitral Tribunal. Relying on certain other judgments of the Supreme Court of India it was contended by learned counsel that all these questions can squarely be raised before the Arbitral Tribunal itself. There is therefore available an adequate efficacious alternate remedy and therefore the petition should not be entertained. That according to her was an obstacle in maintainability of the petition.
4. We heard the parties at some length on this preliminary objection. Mr. M. S. Ganesh, learned counsel appearing on behalf of the petitioners has relied upon the following 10 judgments of the Supreme Court of India reported in the cases of (i) Konkan Railway Corpn. Ltd. v. Mehul Construction Co. , (ii) Konkan Railway Corpn. Ltd. v. Rani Construction Pvt. Ltd. , (iii) State of Orissa v. Gokulananda Jena, (2003)5 Scale 543 : (2003 AIR SCW 3772), (iv) M. V. Elizabeth v. Harwan Investment and Trading Pvt. Ltd. (v) Oil & Natural Gas Corpn. Ltd. v. Saw Pipes Ltd. (vi) Marbury v. Madison 1 Cranch 137 : 2 L. Ed. 60 (1803), (vii) Modern Steel Industries v. State of U.P. , (viii) Raj Krushna Bose v. Vinod Kanungo , (ix) Shri Kihota Hollohan v. Zachilhu, and (x) Food Corporation of India v. Indian Council of Arbitration, and contended that writ petition is therefore maintainable. All these judgments are binding on us as per law of precedence. All that has been said by these judgments and the law is settled is that the writ petition challenging the order under Section 11 of the Arbitration Act is maintainable and therefore according to the learned counsel there is no hurdle in this Court hearing the petition. In our opinion, the objection taken by Ms. Rajni Iyer is to the entertainment of the petition and not maintainability of the petition. Relying on two judgments of this Court she has urged that the petitioners have alternate remedy available and therefore this petition should not be entertained whether it is maintainable or not.
5. She relied upon two judgments of this Court viz. (i) Oil and Natural Gas Corporation Ltd. v. Garware Shipping Corporation Ltd. and Anr. Writ Petition No. 1450 of 2003 decided by Division Bench of this Court on 5-8-2003; (ii) S. B. P. and Co. v. Patel Engineering Limited (2003)2 Mah. LJ 394 where this court has considered in extenso the judgments relied upon by the petitioners therein for the proposition that writ petition challenging the order under Section 11 of the Arbitration Act is maintainable and then this Court held that from all these judgments reliance on which is placed in this case also it is obvious that all the questions regarding existence or non-existence of jurisdictional or Arbitral tribunal can be raised before the Tribunal itself and therefore all these objections be raised before the Arbitral Tribunal. It was in that sense that the petition was held not maintainable. The ratio of the judgment delivered by Division Bench of this Court is that in cases where alternate efficacious remedy is available the discretionary jurisdiction under Article 226 could not be exercised by this Court. That view, with deepest respect to the Bench is completely in consonance with and in accordance with all principles laid down by Supreme Court of India in this aspect. This Court has observed in Writ Petition No. 1450 of 2003 as under :
“Thus all facets and aspects touching arbitration and validity to constitution of arbitral tribunal (legality, propriety and validity thereof) have to be adjudicated by the Arbitral Tribunal once reference is made to it. In a situation like this where the petitioner has adequate, efficacious and appropriate remedy of raising all contentions issues as aforenoted before Arbitral tribunal. Whether invocation of extra-ordinary jurisdiction should be permitted. It is now well-settled that powers of the High Court under Article 226 of the Constitution of India are discretionary and the resort to the extra ordinary jurisdiction is not intended as an alternative remedy for relief which may be obtained by the mode provided in the statute. Where it is open to the aggrieved per son to move before the Arbitral tribunal itself in respect of its constitution or existence or validity of the agreement we are of the view that the machinery provided under Section 16 ordinarily does not deserve to be bypassed.”
6. This Bench observed further in this relation as under :
“….. …. …. the discretion must be exercised along recognized lines lest it may degenerate into caprice and in the light of the process available to the aggrieved party to raise all contentions issues relating to the challenge to the constitution of Arbitral Tribunal and existence and legality of the arbitration agreement before the Arbitral Tribunal, it would not be sound exercise of discretion under Article 226 to entertain the petition challenging the order of the Chief Justice or designated Judge under Section 11 of the Act of 1996 whereby the Arbitral Tribunal is constituted. We are benefited by the words of Supreme Court in Food Corporation of India. “The legislative intent underlying the 1996 Act is to minimize the supervisory role of courts in arbitral process and nominate/appoint the Arbirator without wasting time, leaving all contentious issues to be urged and agitated before the arbitral tribunal itself.”
8. We, accordingly, are satisfied that this is not a fit case for invocation of writ jurisdiction and writ petition is liable to be dismissed which we order hereby.”
7. This Court has then taken a view and in all humility we feel that it is so taken rightly that in such situation where adequate alternate remedy exists it would be sound exercise of discretion under Article 226 to decline interference in the face of alternate remedy available.
8. We therefore dismiss this petition leaving all contentions regarding existence of arbitration agreement, its enforceability and validity of the constitution of Arbitral Tribunal under Section 11(6) of the Act for being raised before the tribunal if so advised. All the contentions raised in this petition would be open for the petitioners to raise before the Arbitral Tribunal. No injury of any kind would therefore be caused to the petitioners if this petition is rejected with that liberty granted to them. In our opinion, the scope and extent of writ jurisdiction was well restricted by this Court by the judgment of the Oil and Natural Gas Corpn. Ltd. (supra) and in the absence of any injury of any kind to the petitioners we do not think it appropriate to entertain the petition merely be cause it is maintainable. Accordingly the petition is dismissed with the observations as made hereinabove. There will be no order as to costs.
