JUDGMENT
S.P. Talukdar, J.
1. A very strange problem, indeed.
2. This Court in response to the application under Article 227 of the Constitution is called upon to make such order which can bring the alleged inertia of inaction on the part of the learned Arbitrator to an end.
3. Grievance of the petitioner, as ventilated in the application under Article 227 of the Constitution, relates to alleged failure to exercise jurisdiction vested in the learned Arbitrator by not adjudicating and passing any order in response to the application dated 17.5.2005 under Section 17 of the Arbitration and Conciliation Act, 1996.
4. The backdrop of the present dispute may be capsulated in a few sentence as follows:
Petitioner’s father, since deceased, made a higher purchase agreement in 1999 in respect of purchase of a new Mahindra Commander jeep valued at Rs. 3,23,256/-. Apart from initial payment of an amount of Rs. 6,192/-, the petitioner paid an amount of Rs. 4,40,018/- directly to the opposite party against receipts.
5. But the opposite party illegally and forcefully took possession of the said vehicle on 27.2.2000 and on 23.6.2001. The petitioner filed a title suit being Title Suit No. 1796/2001 in the City Civil Court, Calcutta.
6. Despite receipt of an amount of Rs. 4,46,210/-, the financier/opposite party forcibly took possession of the said vehicle on 14.12.2004 – without giving any seizure list or document. The vehicle is still in possession of the opposite party.
7. The petitioner thereafter filed an application before the learned Arbitrator on 17.5.2005. The matter was fixed on 19.5.2005 by the learned Arbitrator in presence of both parties. Curiously enough, learned Arbitrator refused to pass any order in respect of the said application on that date and it asked the parties to reconcile the matter.
8. Repeated requests for passing an order in respect of the said application under Section 17 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, 1996) having failed to yield any result, the petitioner approached this Court with the instant application under Article 227 of the Constitution. Before that, a representation through learned Advocate was made on 9.12.2005. Learned Arbitrator received the same on 10.12.2005, but did not bother to pass any order.
9. Learned Counsel for the petitioner, referring to such backdrop of the present controversy, submitted that the strange indifference as reflected from the non-response, if not wilful negligence, on the part of the learned Arbitrator virtually had thrown the petitioner into an occan of uncertainty. It is submitted that this Court being equipped with the power under Article 227 of the Constitution cannot afford to be indifferent.
10. On the other hand, learned Counsel for the opposite party, at the very outset, challenged the maintainability of the present application on the ground that there is no scope for any manner of interference in exercise of this Court’s power under Article 227 of the Constitution.
11. Having regard to the submission made by learned Counsel for the parties, the crux of the controversy seems to be as to whether this Court in exercise of its power under Article 227 of the Constitution can at all pass any order in order to redress the grievance of the petitioner.
12. One of the main objectives of the Act ‘the Act of 1996’ is to be minimize the supervisory role of Courts in the arbitral process. Though objects and reasons cannot be the ultimate guide in interpretation of statutes, it often times aids in finding out what really persuaded the legislature to enact a particular provision [Bharat Singh v. New Delhi Tuberculosis Centre ]. It cannot be disputed that the object of the Act is to provide speedy and alternative solution to the dispute and avoid protraction of litigation.
13. The Apex Court in the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. reported in AIR 2001 SC 2291 observed that the provisions of the Act have to be interpreted accordingly. The provisions of the Act make it clear that arbitration proceedings are to be conducted by the Arbitrator with reasonable dispatch.
14. If there is iota of truth in the allegation made by the petitioner, it cannot be denied that the learned Arbitrator by not responding to the application and by refraining itself from making any order has conducted in a manner which certainly is not consistent to the object of the Act.
15. Section 5 of the 1996 Act provides that:
Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part.
16. Borrowing words from the book, “India’s Legal System can it be saved?” by Fali S. Nariman, it can be said that the underlying philosophy on which the 1996 Act is based is autonomy of the parties and the non-intervention of National Courts in the arbitral process.
17. Section 5 of the Act bars the jurisdiction of Courts to interfere or to intervene in arbitration proceedings except to the extent provided in Part I. This part provides for intervention of Courts in the following cases:
(1) Section 8 — making reference in a pending suit.
(2) Section 9 — passing interim orders.
(3) Section 11 — appointment of arbitrators.
(4) Section 14(2) — terminating mandate of arbitrator.
(5) Section 27 — Court assistance in taking evidence.
(6) Section 34 — setting aside an award.
(7) Section 37 — entertaining appeals against certain orders.
(8) Section 39(2) — directing delivery of award.
18. Section 17 of the Act deals with interim measures which can be ordered by arbitral Tribunal.
19. Section 9 provides for the taking of interim measures by the Court whereas Section 17 of the Act provides for the taking of interim measures in respect of the subject matter of the dispute by the arbitral Tribunal. It is no wonder that the petitioner, with great expectation of getting justice, approached the learned Arbitrator and sought for an order. It is strange that the learned Arbitrator had allegedly not passed any order whatsoever, not even an order directing interim measure.
20. In the application it was claimed that the learned Arbitrator attempted to effect a reconciliation. This by itself cannot be grudged. Attempt to settle the matter is certainly not incompatible with the object of the Act and the Tribunal may very well encourage settlement of the dispute.
21. Section 34 empowers the arbitral Tribunal to use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement with the agreement of the parties. Question now arises as to how far the learned Arbitrator is justified in not passing of an order in response to an application under Section 17 where such attempts for settlements have not yielded any result.
22. The decision in the case of SBP & Co. v. Patel Engineering Ltd. and Anr. reported in 2005(8) SCC 618, was cited in the midst of argument relating to the scope of any interference.
23. Observation of the Apex Court, which may be reproduced as follows, was brought to the notice of this Court:
Hence the stand adopted by some of the High Courts any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or Article 227 of the Constitution is disapproved. Such an intervention by the High Courts is not permissible.
24. While summing up the conclusions arrived at by the majority Judges in the case of SBP & Co. (supra), it was held that “once the matter reaches the Arbitral Tribunal or the sole Arbitrator, the High Court would not interfere with the orders passed by the arbitrator or the Arbitral Tribunal during the course of the Arbitration proceedings and the parties could approach the Court only in terms of Section 37 of the Act or in terms of Section 34 of the Act.”
25. The Apex Court in the case of Laxmikant Revchand Bhojwani v. Pratapsingh Mohansingh Pardeshi , held that “The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.”
26. The legal position, thus, seems to be well settled. There is very little scope for the High Court to interfere in exercise of its power under Article 227 of the Constitution. But while referring back to the object of the Act, it is found that it is to minimize the supervisory role not to extinguish it altogether.
27. Here in this case, it is not a question of interfering with ‘any order’. The petitioner just knocked the door of this Court demanding such minimum interference or better said, intervention, for getting justice.
28. It is, perhaps, not necessary to discuss about such constitutional power under Article 226 and Article 227 which have been time and again held to be basic features of the Constitution. But the supervisory role is certainly to be confined to the minimum level and only for the purpose of serving the objects of the Act in a useful manner.
29. In the present case, the allegation against the learned Arbitrator is his painful non-response over a protracted period of time. No order has been passed by the learned Arbitrator. Petitioner by filing such application under Article 227 just sought for a direction upon the learned Arbitrator for passing an order on the application filed before the Tribunal.
30. Having regard to the various provisions of the Act as well as its objects and reasons, this Court takes it as its Constitutional obligation in directing the learned Arbitrator to pass order in respect of the said application.
31. The present application being C.O. No. 380 of 2006 accordingly stands disposed of with a direction upon the learned Arbitrator to take all possible steps so as to expedite the disposal of the application under Section 17 of the Arbitration and Conciliation Act, 1996 filed on 17.5.2005 praying for interim measure and steps may very well be taken for disposal of the said application within a period of eight weeks from this date – of course, after giving opportunity of hearing to both parties.
32. No order as to costs.
33. This order disposes of C.O. No. 380 of 2006.
34. Xerox certified copy of the order be supplied to the parties as expeditiously as possible.