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S.B. Civil Misc. Arbitration Application No.31/2008
M/s. Nav Bhart Buildcon (P) Ltd.
Vs
State of Rajasthan & Ors.
Date of Order dated 5.1.2010
HON'BLE MR. PRAKASH TATIA, J.
Mr.Sajjan Singh,for the petitioner.
Mr. LK Purohit, for the respondents.
Heard learned counsel for the parties.
The petitioner submitted an application under Section
11 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as the Act of 1996) before this Court which was
registered as S.B. Civil Misc. Arbitration Application
No.54/2004. At that time, it came to the notice of the court
that similar application was filed by the petitioner-applicant
at Jaipur Bench. The time was sought to know about the
fate of the petition filed at Jaipur Bench and then it came to
notice of this Court in the Arbitration Application
No.54/2004 that the applicant clearly stated that he is no
longer interested in the said application at Jaipur Bench. In
view of the above, the arbitration application no.36/2002
filed at Jaipur Bench was dismissed by the order dated
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4.2.2005. After noticing above affairs, this court also
noticed that the matter has already been sent to the
committee constituted as per the clause no.23 of the
contract between the parties and matter was pending
before that committee. Against the proceeding before the
standing committee, the present petitioner-applicant
submitted his objection asking them not to proceed with the
arbitral proceedings because the matter was pending before
this Court in petitioner’s above arbitration applications.
This court also observed that an application was filed
seeking direction under Section 11(6) of the Act of 1996
opposing the proceedings of the committee under condition
no.23 and this court observed that, that was not in the
spirit of the provisions of the Act of 1996. In these facts,
the arbitration application no.54/2004 was disposed of by
this court at principal seat on 4th March, 2005 with the
direction to both the parties to appear before the duly
constituted committee in the office of Secretary to the
Government in Irrigation Department, Rajasthan Jaipur on
18th April, 2005 and direction was given to the Secretary to
the Government, Irrigation Department to fix the date for
further proceeding in arbitration proceedings as far as
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possible within a period of three months. It was specifically
observed that in case either party fails to cooperate in the
matter, it will be open for the other party to seek necessary
directions under Section 11(6) by moving appropriate
application.
The petitioner now has submitted this application
under Section 11(6) of the Act of 1996 seeking relief for
setting aside the ex-parte decision given by the empowered
committee. The relief claimed in the petition for setting
aside the decision of the empowered committee is beyond
the scope of Section 11(6) of the Act of 1996 because of the
fact that a decision given by empowered committee is a
decision given under the contract and that cannot be
challenged under any of the provisions under Section 11 of
the Act of 1996 including under sub-section (6) of Section
11 of the Act of 1996. The sub-section (6) of Section 11 of
the Act of 1996 is reproduced as under: –
“(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
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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.”
It is clear from the said provision that it deals with
certain contingencies where the designated judge
designated by the Chief Justice of the High Court can pass
appropriate order obviously so as the arbitral proceedings
may be completed in accordance with law and it is not a
provision wherein any award passed or decision taken by
the competent committee can be set aside.
In view of the above reasons, this petition has no
merit and the same is hereby dismissed.
[PRAKASH TATIA], J.
cpgoyal/-