Gujarat High Court Case Information System
Print
IAAP/11/2006 8/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
PETN.
UNDER ARBITRATION ACT No. 11 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
G.K.
PATEL & CO. - Petitioner(s)
Versus
GUJARAT
STATE ELECTRICITY CORPORATION LTD. & 1 - Respondent(s)
=========================================
Appearance :
MR
HK PARMAR for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
MS LILU
K BHAYA for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 15/01/2010
ORAL
JUDGMENT
1. The
present Arbitration Petition has been preferred by the
petitioner-contractor, under Section 11(6) of the Arbitration and
Conciliation Act, 1996, for appointment of an Arbitrator for
reference and resolution of
the disputes in connection with the work of Area Grading and
Earthwork within Ash Pond at Wanakbori Thermal Power Station.
2. Before
considering the submissions made on behalf of the rival parties, few
facts are required to be considered for determination of the present
Arbitration Petition, which are as under;
2.1. Earlier
the very petitioner-contractor approached this Court under Section 11
of the Arbitration and Conciliation Act, 1996 by way of Arbitration
Petition No. 11/2003 and prayed to appoint sole Arbitrator for
adjudication of the disputes and/or differences, rights and claims,
which are referred to in the notice dated 26/11/2002. The aforesaid
Arbitration Petition came up for hearing before the learned
designated Single Judge (Coram:-J.M. Panchal, J. [as he then was])
and by judgement and order dated 22/08/2003 the learned Single Judge
dismissed/rejected the Arbitration Petition by specifically holding
that the disputes, which are raised in respect of the work contract
entered into between the petitioner and the respondent are required
to be adjudicated by the tribunal under Section 8 of the Gujarat
Public Works Contract Disputes Arbitration Act, 1992 (hereinafter
referred to as the Act, 1992 ). Thereafter, the
petitioner-contractor accepted the said judgement and order and
preferred Arbitration Reference Application No. 27/2003 and
thereafter the petitioner-contractor submitted an application below
Exh. 21 dated 01/11/2004 in the aforesaid Arbitration Reference
permitting it to withdraw the said Arbitration Reference with a
liberty in its favour to approach this Court under Section 11 of the
Arbitration and Conciliation
Act, 1996 for appointment of an Arbitrator as per the old Arbitration
Clause contending interalia
that the tribunal constituted under the aforesaid act would not have
any jurisdiction to entertain the nature of dispute between the
petitioner and the respondent in view of the definition of the ‘work
contract’ under the Act 1992. The learned tribunal as if sitting in
appellate Court, despite the order passed by the learned Single Judge
dated 22/08/2003 in Arbitration Petition No. 11/2003 by which it was
specifically held while rejecting the aforesaid Arbitration Petition
that it is the tribunal constituted under the aforesaid Act, 1992,
Jurisdiction to resolve the dispute between the parties, allowed the
application Exh. 21 permitting the petitioner to withdraw Arbitration
Reference No. 27/2003 with a liberty in favour of the petitioner to
present the same before appropriate forum. It appears that
thereafter the petitioner preferred the present Arbitration Petition
again under Section 11 of the Arbitration and Conciliation Act, 1996
to appoint sole arbitrator for adjudication of the disputes and/or
differences, rights and claims, which are referred to in the notice
dated 26/11/2002 for which the very petitioner had earlier preferred
Arbitration Petition No. 11/2003, which was rejected by the learned
Single Judge vide order dated 22/08/2003. Arbitration Petition No.
11/2006 came to be allowed by the learned Single Judge vide judgement
and order dated 20/07/2006. However, subsequently, Miscellaneous
Civil Application No. 145/2006 was preferred by the
respondent-Gujarat State Electricity Corporation Ltd. to review the
judgement and order dated 20/07/2006 made in Arbitration Petition No.
11/2006 and the said application came to be allowed by the learned
Single Judge vide order dated 21/09/2006 and the judgement and
order
dated 20/07/2006 made in Arbitration Petition No. 11/2006 (present
petition) came to be recalled and the same came to be restored to
file and that is how the present Arbitration Petition is before this
Court for appointment of sole Arbitrator for adjudication of the
disputes and/or differences, rights and claims, which are referred to
in the notice dated 26/11/2002 produced at Annexure A to the
Arbitration Petition.
3. Shri
S.N. Shelat, learned Senior advocate has appeared with Shri H.K.
Parmar, learned advocate appearing on behalf of the petitioner. It
is submitted that in view of the order passed by the learned tribunal
dated 05/11/2004 passed below Exh. 21 in Arbitration Reference No.
27/2003 and the finding of the learned tribunal to the effect that
the petitioner has chosen wrong forum by approaching the tribunal by
way of Arbitration Reference, the learned tribunal has permitted the
petitioner to withdraw the main Arbitration Reference with a liberty
to approach appropriate forum, and, therefore, it is requested to
allow the present Arbitration Petition by appointing sole Arbitrator
to resolve the disputes between the parties. He has also further
submitted that as such the tribunal constituted under the Gujarat
Public Works Contracts Dispute Arbitration Tribunal Act, 1992 would
not have jurisdiction to resolve the dispute between the parties and,
therefore, the present Arbitration Petition is the only remedy
available to the petitioner for appointment of an Arbitrator. It is
further submitted that one learned Single Judge earlier allowed the
Arbitration Petition and in fact appointed the Arbitrator and,
therefore, it is requested to appoint an Arbitrator. Shri S.N.
Shelat, learned Senior advocate appearing on behalf of the petitioner
has further submitted that for the claims of the petitioner, as
reflected in the notice dated 26/11/2002,
there is a dispute between the parties and, therefore, as per the
Arbitration Agreement executed between the parties the dispute
arising out of the claims made by the petitioner is required to be
referred to the Arbitrator and for that purpose an Arbitrator is
required to be appointed.
4. It
is further submitted by Shri Shelat, learned Senior advocate
appearing on behalf of the petitioner that as both the parties had
agreed before the tribunal that the tribunal would not have
jurisdiction to resolve the dispute between the parties and when both
the parties have agreed before the tribunal that the matter is
required to referred to the Arbitrator, irrespective of any
technicalities, the dispute between the parties is required to be
referred to the Arbitrator, and, therefore, the Arbitrator is
required to be appointed. By making the above submissions, it is
requested to allow the present Arbitration Petition.
5. The
present Arbitration Petition is opposed by Ms. Lilu Bhaya, learned
advocate appearing on behalf of the respondents. She has submitted
that as such there was no consensus/consent made by the respondents
before the tribunal to refer the dispute to the Arbitrator, as
contended by the petitioner. It is also further submitted that no
such consensus/consent was given by the respondents. It is also
further submitted by Ms. Lilu Bhaya, learned advocate appearing on
behalf of the respondents that the petitioner cannot rely upon the
earlier order passed by this Court in the present Arbitration
Petition as the said order is already recalled vide
order dated 21/09/2006 in Miscellaneous Civil Application No.
145/2006 and, therefore, the said order is not in existence at all
and the petitioner cannot rely upon the order, which is not in
existence.
6. Number
of submissions have been made by the learned advocates appearing on
behalf of the respective parties on merits, inclusive of the
objections by the respondents objecting to refer the matter to the
Arbitrator, as according to the respondents, the claim of the
petitioner is absolutely time barred and/or there is no dispute,
which is required to be referred to the Arbitrator. However, in view
of the order passed hereinafter, as this Court is of the opinion that
the present Arbitration Petition is not maintainable in view of the
order passed by the learned Single Judge (Coram :- J.M. Panchal, J.
[as he then was]) in Arbitration Petition No. 11/2003 rejecting the
petition for appointment of Arbitrator, this Court is not further
entering into the merits of the case and/or considering the
objections raised by the learned advocate appearing on behalf of the
respondents with respect to the claim being time barred and/or other
defences.
7. Having
heard the learned advocates appearing on behalf of the respective
parties and considering the entire record and proceedings of the case
and the facts narrated hereinabove, it cannot be disputed that
earlier the very petitioner had preferred Arbitration Petition No.
11/2003 for appointment of an Arbitrator for adjudication of the
disputes and/or differences, rights and claims, which are referred to
in the notice dated 06/11/2002 (for which the present Arbitration
Petition has been preferred) and the learned Single Judge (Coram:-
J.M. Panchal, J. [as he then was]) had vide order dated 22/08/2003
rejected the the said Arbitration Petition by holding that all the
questions, disputes, differences, whatsoever, which may at any time
arise between the parties to the contract in connection with the
contract or any matter arising out of or in relation thereto, shall
be referred to the Gujarat Public Works Contracts Disputes
Arbitration Tribunal as per the provisions of the Gujarat Public
Works Contract Disputes Arbitration Tribunal Act, 1992 and the
learned Single Judge also held that any dispute between the
petitioner and the respondents, which has public undertaking, are
also required to be adjudicated by the tribunal under Section 8 of
the Act and in view of the provisions of Section 21 of the Act, the
Arbitration Petition cannot be entertained and the relief claimed
cannot be granted. The learned Single Judge also observed that the
petitioner is always at liberty to approach appropriate forum for
redressal of its grievance. Accepting the aforesaid judgement and
order dated 22/08/2003 passed in Arbitration Petition No. 11/2003,
in fact, the petitioner did approach the tribunal constituted under
Section 8 of the Act by way of Arbitration Reference No. 27/2003.
However, after the aforesaid Arbitration Reference was filed, after a
period of almost more than one year, the petitioner submitted an
application, Exh. 21 in the aforesaid Arbitration Reference
permitting it to withdraw the said Arbitration Reference by
submitting that the tribunal constituted under Section 8 of the Act
would not have any jurisdiction to adjudicate the dispute between the
parties. However, in view of the order passed by the learned Single
Judge dated 22/08/2003 in Arbitration Petition No. 11/2003, without
challenging the same, the petitioner ought not to have and/or could
not have submitted such an application, Exh. 21 permitting
it to withdraw the said Arbitration Reference by submitting that the
tribunal constituted under Section 8 of the Act would not have any
jurisdiction to adjudicate the dispute between the parties. Such a
course was highly impermissible and against the propriety. Without
challenging the order passed by the learned Single Judge dated
22/08/2003 in Arbitration Petition No. 11/2003 by which the learned
Singled rejected the Arbitration Petition holding that for
adjudication of the disputes between the parties the tribunal
constituted under Section 8 of the Act would have the jurisdiction,
it was not open for the petitioner to contend contrary before the
tribunal. Not only the same, the tribunal as if was sitting in
appeal against the order passed by the learned Single Judge allowed
the said application, Exh. 21, permitting the petitioner to withdraw
the Arbitration Reference by holding that for adjudication of the
disputes between the parties, the tribunal constituted under Section
8 of the Act would not have any jurisdiction. By the aforesaid
order, virtually the tribunal, who is the subordinate Court, has
quashed and set aside the order passed the learned Single Judge dated
22/08/2003 in Arbitration Petition No. 11/2003. The tribunal, being
subordinate to High Court could not have taken a contrary view than
the view taken by the learned Single Judge in Arbitration Petition
No. 11/2003 and, therefore, the order passed by the learned tribunal
is absolutely without jurisdiction and against the judicial
discipline and propriety. The proper course for the tribunal was to
reject the said application and relegate the petitioner to approach
this Court by way of Review Application in Arbitration Petition No.
11/2003 and/or direct the petitioner to challenge the order passed by
the learned Single Judge dated 22/08/2003 in Arbitration Petition No.
11/2003. Certainly, the tribunal could
not have taken the contrary view to the view taken by the learned
Single Judge, being subordinate tribunal/Court.
8. Under
the circumstances so long as the order passed by the learned Single
Judge dated 22/08/2003 in Arbitration Petition No. 11/2003 stands and
is not modified and/or set aside by the appropriate Court/forum, this
Court, being a Court of Coordinate Bench, cannot take a contrary
view than the view taken by the learned Single Judge in Arbitration
Petition No. 11/2003 dated 22/08/2003 by which the learned Single
Judge rejected the said Arbitration Petition submitted by the very
petitioner, which was submitted for referring the dispute to the
Arbitrator for adjudicating and deciding the very dispute for which
the present Arbitration Petition has been preferred. As stated
hereinabove, the learned Single Judge while rejecting the Arbitration
Petition, being Arbitration Petition No. 11/2003, has specifically
held that the dispute is required to be adjudicated by the tribunal
constituted under the provisions of the aforesaid Act, and,
therefore, unless and until the said order is either recalled and/or
modified by this Court and/or set aside by the higher forum, no
relief can be granted to the petitioner in the present proceedings
for the very relief, which was rejected by this Court vide order
dated 22/08/2003 in Arbitration Petition No. 11/2003.
9. So
far as the contention on behalf of Shri Shelat, learned Senior
advocate appearing on behalf of the petitioner that even the other
side consented before the tribunal that the tribunal has no
jurisdiction and the matter is required to be referred to the
Arbitrator is concerned, the same is the disputed by the learned
advocate appearing on behalf of the respondents.
10. Be
that as it may. Even assuming that such consensus/consent was given
by the learned advocate appearing on behalf of the respondent before
the tribunal, in that case also, by consent of the parties, the order
passed by the learned Single Judge dated 22/08/2003 in Arbitration
Petition No. 11/2003 cannot be set at knot and the parties by consent
cannot be permitted to withdraw the proceedings to approach this
Court. As stated hereinabove, if the parties were/are of the opinion
that the tribunal has no jurisdiction to adjudicate the dispute
between the parties, in that case, either of the parties could have
initiated appropriate proceedings either to recall and/or modify the
order dated 22/08/2003 passed in Arbitration Petition No. 11/2003
and/or they could have challenged the order passed by the learned
Single Judge in Arbitration Petition No. 11/2003. However, by
mutual consent they cannot be permitted to set aside the order passed
by the learned Single Judge in Arbitration Petition No. 11/2003. The
things, which are required to be done in proper and particular
manner, are to be done only in such a manner after following
necessary procedure as required under the law. By consent, the
parties cannot be permitted to do certain things, which is not
permissible under law without following the due procedure.
11. Now
so far as reliance placed upon the earlier order passed by the
learned Single Judge dated 20/07/2006 in the present Arbitration
Petition for appointing the sole Arbitrator is concerned, it is to be
noted that after the said order was passed, Miscellaneous Civil
Application No. 145/2006 in Arbitration Petition No. 11/2006 was
preferred by the respondents and by order dated 21/09/2006 the order
dated 20/07/2006 has been recalled and Arbitration Petition No.
11/2006 is restored to file, meaning thereby, the order dated
20/07/2006 is not in existence at all. Under the circumstances, the
learned Senior advocate appearing on behalf of the petitioner cannot
rely upon the order dated 20/07/2006, which is not in existence.
12. In
view of the above and for the reasons stated hereinabove, more
particularly, the order passed by the learned Single Judge dated
22/08/2003 in Arbitration Petition No. 11/2003, no relief can be
granted to the petitioner, more particularly, so long as the order
passed by the learned Single Judge dated 22/08/2003 in Arbitration
Petition No. 11/2003 stands and/or it is not recalled and/or modified
by this Court and/or set aside by higher forum. In view of the
above, the present Arbitration Petition is required to be dismissed
and is accordingly dismissed.
(M.R.
SHAH, J.)
siji
Top