{"id":48292,"date":"2007-03-01T00:00:00","date_gmt":"2007-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-m-c-ltd-vs-unit-trust-of-india-ors-on-1-march-2007"},"modified":"2015-12-30T23:32:33","modified_gmt":"2015-12-30T18:02:33","slug":"c-m-c-ltd-vs-unit-trust-of-india-ors-on-1-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-m-c-ltd-vs-unit-trust-of-india-ors-on-1-march-2007","title":{"rendered":"C.M.C. Ltd vs Unit Trust Of India & Ors on 1 March, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C.M.C. Ltd vs Unit Trust Of India & Ors on 1 March, 2007<\/div>\n
Author: P Balasubramanyan<\/div>\n
Bench: P.K. Balasubramanyan, V.S. Sirpurkar<\/div>\n
           CASE NO.:\nAppeal (civil)  1119 of 2007\n\nPETITIONER:\nC.M.C. LTD\n\nRESPONDENT:\nUNIT TRUST OF INDIA & ORS\n\nDATE OF JUDGMENT: 01\/03\/2007\n\nBENCH:\nP.K. BALASUBRAMANYAN & V.S. SIRPURKAR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP(C) No. 69 of 2004)<\/p>\n
P.K. BALASUBRAMANYAN, J.\n<\/p>\n
\t\tLeave granted.\n<\/p>\n
1.\t \tThe appellant and respondent No. 1 entered into an
\nagreement dated 23.10.1992 for a Technology Upgrade Project
\nof the latter.  The said agreement contained an arbitration
\nclause.  The same read:\n<\/p>\n
“20.\tIn the event of any dispute or difference
\nrelating to the interpretation or
\napplication of any of the provision of this
\nAgreement or as to the performance of
\nany obligation by either party shall be
\nsettled by arbitration.  Each party shall
\nappoint an arbitrator and the arbitrators
\nso appointed shall appoint an umpire to
\nwhom the matter on which the
\narbitrators disagree will be referred.  The
\ndecision of the arbitrators and in the
\nevent of there being disagreement
\nbetween the arbitrators, the decision of
\nthe umpire shall be final, conclusive and
\nbinding on the parties with respect to the
\nmatter referred to arbitration.  The
\ndecision of the arbitrators or the umpire
\nas the case may be shall constitute
\narbitrators award for the purpose of
\nIndian Arbitration Act, 1940.  The
\narbitration proceedings shall be
\nconducted in accordance with the rules
\nprescribed by the Indian Council of
\nArbitration.”\n<\/p>\n
2.\t\tDisputes arose between the parties.  On 16.5.2002,
\nrespondent No. 1 issued a notice invoking the arbitration
\nclause and calling upon the appellant to refer the dispute and
\ndifferences to be settled through arbitration in terms of the
\narbitration agreement.  Respondent No. 1 named an arbitrator
\nwith the suggestion that he may be accepted as the sole
\narbitrator.  But, if the appellant was not willing to treat him as
\nsuch, it was stated that the arbitrator named by respondent
\nNo. 1 may be treated as the one appointed by it in terms of the
\narbitration agreement and in that event, the appellant was
\ncalled upon to name its arbitrator and the said two arbitrators
\ncan then appoint a Presiding arbitrator.   The appellant replied
\nstating that the parties have agreed to follow the Rules
\nprescribed by the Indian Council of Arbitration by
\nincorporating the said Rules by reference in the arbitration
\nclause and since respondent No. 1 had not acted in terms of
\nthe said Rules, the appellant regretted its inability to accept
\nthe stand of respondent No. 1 or to appoint an arbitrator in
\nterms of the arbitration agreement.  The appellant regretted its
\ninability to act on the basis of the notice issued by respondent
\nNo.1.\n<\/p>\n
3.\t\tRespondent No. 1 thereupon moved the Chief
\nJustice of the High Court under Section 11(6) of the
\nArbitration and Conciliation Act, 1996.  Respondent No.1
\ncontended that the appellant had failed to act in terms of the
\nprocedure for appointment of an arbitrator and hence the
\nChief Justice or his Judge designate, may appoint an
\narbitrator to act along with the arbitrator named by
\nrespondent No.1 and direct the two arbitrators to appoint the
\nthird, a Presiding Arbitrator, within the time fixed and to refer
\nall disputes and differences between respondent No.1 and the
\nappellant arising out of or in connection with the Technology
\nUpgrade Agreement as per the provisions of the Act.  The
\nappellant resisted the application essentially pleading that the
\nRules of the Indian Council of Arbitration and the mandate
\nthereof had not been complied with by the applicant before the
\nChief Justice and that the arbitration clause had not been
\nproperly invoked and there is no failure on the part of the
\nappellant herein to act in accordance with the procedure
\naccepted by the parties.  No occasion had therefore arisen for
\nthe Chief Justice to appoint an arbitrator in terms of Section
\n11(6) of the Act.  It is said that the appellant as directed by the
\ncourt had named an arbitrator without prejudice to its
\ncontentions and it is common ground before us that the said
\ntwo arbitrators have also named the Presiding Arbitrator and
\nan Arbitral Tribunal had come into existence, but subject to
\nthe decision in this appeal filed by the appellant.\n<\/p>\n
4.\t\tThe learned designated Judge of the High Court
\nheld that on a true construction of clause 20 of the Agreement
\nwhich is the arbitration agreement, the right or duty to
\nappoint or name an arbitrator each, rested with the parties to
\nthe contract and what was provided for in the arbitration
\nagreement was only regarding the following of the procedure of
\nthe Rules of the Indian Council of Arbitration.  The arbitration
\nagreement did not contemplate the appointment of the
\narbitrator to be as per the Rules of the Indian Council of
\nArbitration or only from the panel of arbitrators maintained by
\nthe Council.  Thus, on a construction of the arbitration
\nagreement in the light of the decisions brought to his notice,
\nthe designated Judge, noticing that the appellant had also
\nnamed an arbitrator without prejudice to its contentions and
\nthat the two arbitrators had nominated a Presiding Arbitrator
\nand that Tribunal can proceed to arbitrate on the dispute
\nallowed the application and constituted the Tribunal as
\nchosen by the parties.  The designated Judge also noticed that
\nthe question about the jurisdiction of the Arbitral Tribunal
\ncould be decided by the Tribunal itself.\n<\/p>\n
5.\t\tIt may be noted that his decision was rendered
\nbefore this Court spoke on the nature of the jurisdiction of the
\nChief Justice or of the designated Judge in SBP & CO. VS.
\nPATEL ENGINEERING LTD. & ANR. [(2005) 8 S.C.C. 618]
\nand held it as a judicial function.  The appellant therefore,
\nfiled a petition under Article 226 of the Constitution of India
\nchallenging the decision of the designated Judge, on the basis
\nthat the said order was only an administrative order.   The
\nDivision Bench held that in view of the restricted jurisdiction
\nthat the court had in such matters and in the absence of any
\ninjury of any kind to the appellant, there was no reason to
\ninterfere with the decision of the designated Judge merely
\nbecause a writ petition was maintainable to challenge the
\nsame.  The Petition for Special Leave to appeal was filed
\noriginally challenging the decision of the Division Bench in the
\nwrit petition.  But subsequent to the decision in SBP &
\nCompany (supra), the appellant was permitted to convert the
\nPetition for Special Leave to Appeal as one challenging the
\norder of the designated Judge and pursue its challenge thereto
\ndirectly in this Court.  Thus, this appeal challenges the
\ndecision of the designated Judge interpreting the arbitration
\nclause quoted above and holding that the parties retained the
\nright to nominate the respective arbitrators and there was no
\nobligation on any of the parties to choose only an arbitrator as
\nper the Rules of Arbitration of the Indian Council of
\nArbitration or to proceed only in terms of those Rules for
\nappointment of an arbitrator.\n<\/p>\n
6.\t\tIt is settled that getting resolution of a dispute by
\narbitration is a matter of contract between the parties.  So long
\nas the contract does not militate against the provisions of the
\nArbitration Act, nothing in law prevents the arbitration
\nagreement between the parties being given effect to in full.
\nWhat is contended by learned counsel for the appellant is that
\nthe arbitration agreement clearly specifies that “the arbitration
\nproceedings shall be conducted in accordance with the Rules
\nprescribed by the Indian Council of Arbitration” and this
\nwould mean that the procedure for appointment of an
\narbitrator and making a claim for arbitration must all be in
\nterms of the Rules of the Indian Council of Arbitration.
\nLearned counsel points out that under Rule 15 any party
\nwishing to commence arbitration proceedings under the Rules
\nof the Council had to give a notice of the request for
\narbitration to the Registrar of Indian Council of Arbitration
\nand to the opposite party and had to follow the procedure laid
\ndown in those Rules.  Learned counsel submits that the Rules
\nof the Indian Council of Arbitration had been incorporated in
\nthe arbitration agreement by the parties and any mode of
\nexercise of right for invoking an arbitration clause other than
\nthe one prescribed by the Rules of the Council would be futile.
\nTherefore, the notice issued on behalf of respondent No.1
\nintimating the appellant of the appointment of an arbitrator
\nand calling upon the appellant to appoint an arbitrator, would
\nnot amount to a proper invocation of the arbitration agreement
\nand there is no failure on the part of the appellant to follow the
\nprocedure agreed to between the parties for appointment of an
\narbitrator resulting in conferment of jurisdiction on the Chief
\nJustice to appoint an arbitrator in terms of Section 11(6) of the
\nAct.  In this context, we may specifically record that the
\nlearned counsel for the appellant agreed that the arbitration
\nwas governed by the Arbitration and Conciliation Act, 1996.
\nRespondent No.1 had, of course, invoked that very Act.\n<\/p>\n
7.\t\tEven going by the Rules of arbitration of the Indian
\nCouncil of Arbitration, it is seen that the parties are not
\nprecluded from having a different procedure for appointment
\nof an arbitrator.   The Rules, even at the inception, suggests
\nthe incorporation by the parties of an arbitration clause in
\nwriting in their contracts in the following terms:
\n“Any dispute or difference whatsoever arising
\nbetween the parties out of or relating to the
\nconstruction, meaning, scope operation or
\neffect of this contract or the validity or the
\nbreach thereof shall be settled by arbitration in
\naccordance with the Rules of Arbitration of the
\nIndian Council of Arbitration and the award
\nmade in pursuance thereof shall be binding on
\nthe parties.”\n<\/p>\n
Rule 4(c) which is relevant reads:\n<\/p>\n
“In case the parties have provided a different
\nprocedure for appointment of arbitrator or
\nschedule of cost including the arbitrator’s fee,
\nthe Council shall not be bound to process the
\ncase unless both the parties agree to follow
\nentire procedure or arbitration under Rules of
\nArbitration of the Council.”\n<\/p>\n
It is clear from the comparison of the arbitration agreement
\nsuggested by the council and the arbitration agreement
\nbetween the parties, that the arbitration agreement between
\nthe parties substantially differs from the one suggested by the
\nIndian Council of Arbitration.  Secondly, Rule 4(c) is specific
\nthat in case the parties had provided a different procedure for
\nappointment of an arbitrator, the Council was not bound to
\nprocess the case unless both the parties agreed to follow the
\nentire procedure or Arbitration Rules of the Council.
\nObviously, a different procedure for appointment of an
\narbitrator or arbitrators had been agreed to by the parties and
\nrespondent No.1 had obviously not agreed to follow the entire
\nprocedure or have an arbitration under the Rules of the
\nCouncil.  Therefore, even if one were to apply the Rules, it is
\ndifficult to accept the argument that respondent No.1 was
\nbound to invoke the Rules of the Council to put in motion an
\neffective machinery for arbitration.\n<\/p>\n
8.\t\tLearned counsel has referred to the decisions in
\nFOOD CORPORATION OF INDIA vs. INDIAN COUNCIL OF
\nARBITRATION & ORS.<\/a> [(2003) 6 S.C.C 564] and in
\nGESELLSCHAFT FUR BIOTECHNOLOGISCHE FORSCHUN
\nGMBH Vs. KOPRAN LABORATORIES LTD. & ANR. [(2004
\n(13) S.C.C. 630] in support of his submission that respondent
\nNo.1  was bound to proceed in terms of the Rules of the
\nCouncil.  But on a scrutiny of those decisions, it is clear that
\nthe arbitration clauses in those cases were substantially in
\nconformity with the model arbitration clause prescribed by the
\nCouncil as quoted earlier and it was in that context that this
\nCourt observed that the Rules of the Council must be followed.
\nThe very appointment of the Arbitral Tribunal was to be
\naccording to those Rules.  But in this case, it is clear that the
\narbitration clause differs considerably from the agreements
\ninvolved in those cases and the parties retained in themselves
\nthe right to appoint the arbitrators.  Hence, those decisions
\ncannot be relied on for the purpose of non-suiting respondent
\nNo.1.\n<\/p>\n
9.\t\tThe argument that there is an incorporation of the
\nRules of the Council in the arbitration agreement and hence
\nthose Rules must be given effect to fully, does not take the
\nappellant far in this case.  On a true construction of the
\narbitration agreement, what we find is that the parties
\nretained in themselves the right to name an arbitrator of their
\nown, who in turn had to name a Presiding Arbitrator so as to
\nconstitute an Arbitral Tribunal.  The power to appoint has not
\nbeen ceded to the Indian Council of Arbitration.  Once the
\nappointments are made and the Arbitral Tribunals are
\nconstituted, the parties have also agreed that the arbitration
\nproceedings shall be conducted in accordance with the Rules
\nprescribed by the Indian Council of Arbitration.  The provision
\nthat the proceedings shall be conducted in accordance with
\nthe Rules prescribed by the Indian Council of Arbitration does
\nnot in any manner militate against the retention of the power
\nby the parties of appointing an arbitrator or constituting an
\nArbitral Tribunal.  Only if there exists any inconsistency
\nbetween the two provisions we would be called upon to
\nundertake the existence of reading down one or ignoring one
\nas ineffective or inconsistent and giving effect to the other.
\nHere in this case, there is no difficulty in reconciling both the
\nclauses in the arbitration agreement.  As we have noticed,
\nresolution of disputes by way of arbitration is a matter of
\nagreement between the parties.  If while contemplating such a
\nresolution of disputes they also retain in themselves the power
\nto constitute an Arbitral Tribunal, it cannot be said that there
\nis anything wrong in such a provision or that the same cannot
\nbe given effect to.    Therefore, the power retained by the
\nparties to name an arbitrator each, does not militate either
\nagainst the provisions of the Act or against the Rules of the
\nIndian Council of Arbitration.  That Arbitral Tribunal once
\nconstituted in terms of the Act, may have to follow the Rules of
\nIndian Council of Arbitration in that behalf.  But as rightly
\npointed out by the learned Additional Solicitor General who
\nappeared on behalf of respondent No.1, when an Arbitral
\nTribunal of persons well versed in law is constituted, surely, a
\nproper procedure will be followed by them and there is no
\nreason to insist on a particular procedure to be followed.   But
\nobviously, it is not a matter on which we need pronounce now.
\nSuffice it to say, that we find no infirmity in the interpretation
\nof the arbitration agreement by the designated Judge and in
\nthe constitution of the Arbitral Tribunal as presently
\nconstituted.  We are also inclined to think that no prejudice is
\ncaused to the appellant and no injustice is involved in the
\nconstitution of the Arbitral Tribunal.  We therefore affirm the
\norder of the designated Judge and dismiss this appeal.  We
\nexpect the Arbitral Tribunal to enter upon the reference
\nwithout any further delay and pronounce its award within
\nnine months of its entering upon the reference.\n<\/p>\n
10.\t\tThe appeal is thus dismissed with the above
\nexpectation. The parties are directed to suffer their respective
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C.M.C. Ltd vs Unit Trust Of India & Ors on 1 March, 2007 Author: P Balasubramanyan Bench: P.K. Balasubramanyan, V.S. Sirpurkar CASE NO.: Appeal (civil) 1119 of 2007 PETITIONER: C.M.C. LTD RESPONDENT: UNIT TRUST OF INDIA & ORS DATE OF JUDGMENT: 01\/03\/2007 BENCH: P.K. BALASUBRAMANYAN & V.S. SIRPURKAR JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-48292","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC.M.C. 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