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TMI Blog2003 (7) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... er than sixty days from this date nominate the Arbitrator as sought for by the appellants and place the matters before such Arbitrator, leaving open to the parties to raise and pursue all objections and contentions and thereby seek for the decision of the Arbitrator as envisaged under section 16 of the 1996 Act, besides getting adjudication of the respective disputes in these cases on merits and in accordance with law. Both parties will have leave and liberties to do so before the Arbitrator on being nominated/appointed by the ICA, pursuant to these orders. - CIVIL APPEAL NOS. 4655 TO 4987 OF 2003 - - - Dated:- 17-7-2003 - DORAISWAMY RAJU AND D.M. DHARMADHIKARI, JJ. G.L. Sanghi, K.C. Ranjeet and Ajit Pudussery for the Appellant. A.K. Ganguli, A.T. Patra, Nipun Malhotra, Rajan Narain, Ms. Puja Sharma, S.L. Aneja, Balbir Singh Gupta, Pradeep Kumar Bakshi, Balraj Dewan, R. Nedumaran, A.P. Mohanty and Mrs. Amita Gupta for the Respondent. JUDGMENT Doraiswamy Raju, J. - Special leave granted. These appeals are dealt with together since they involve identical questions for consideration on almost similar set of facts. 2. The appellants are the Food Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrator. Such person shall be entitled to pro ceed with reference from the stage where it was left by his predecessor: Provided further that any demand for arbitration in respect of any claim(s) of the Miller, under the contract shall be in writ ing and made within one year of the date of completion of expiry of the period of contract. If the demand is not made within the period, the claim(s) of the Millers shall be deemed to have been waived off and absolutely barred and the Corporation shall be discharged and released of all liabilities under the contract in respect of these claims. The costs of the proceedings in connection with arbitration shall be in the discretion of the arbitrator who may make suitable provision for the same in his award". 4. Even after the FCI had sent consent letters from different rice mills to ICA, finding no response from some of the Millers when the ICA wrote to them, the ICA by its communication dated 10-12-1998 called upon the FCI to require the concerned Millers, who gave consent for arbitration through ICA, to communicate directly with the ICA conveying their consent and conveying further that on receipt of the consent from the concerned Ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion envisaged the appointment of Arbitrator by the FCI whereas if it is to be appointed by the ICA, it can be only with the consent of the parties, which, according to the Court, was wanting in these cases. Rule 22( a ) of the ICA Rules was considered to be in direct conflict with the arbitration clause entered into between parties in this regard and once the power to appoint the Arbitrator is given under the arbitration clause in this case to the Senior Regional Manager/Zonal Manager of the FCI, no power could be said to have been given to the ICA to appoint an Arbitrator and that it is only after an Arbitrator has been appointed by the FCI in terms of the agreement the rules of the ICA were required to be followed as to the procedure for conduct of the same and not before that stage and consequently there was no failure on the part of the ICA in these cases to call for the interference of the Court. Aggrieved, these appeals have been filed. 7. Heard the learned senior counsel appearing on either side. Shri G.L. Sanghi, learned counsel for the Food Corporation of India, the appellants herein, both at the time of hearing and in the written submissions, vehemently contend tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Konkan Railway Corpn. Ltd. s case ( supra ) and Konkan Railway Corpn. Ltd. v. Mehul Construction Co. [2000] 7 SCC 201, it is also urged that in the teeth of the applications filed before the High Court under section 11(6) of the 1996 Act, it is not now open to the appellants to contend that the same was not under the said provisions of law and the order passed could not be viewed as one passed under the said provisions. reiterating the stand taken and justifying the course of action adopted by the ICA, it is being contended that in the teeth of the stipulation contained in the arbitration clause in the agreement between parties enabling the Senior Regional Manag er/Zonal Manager of the Corporation to appoint/nominate an Arbi trator out of the persons in the panel of Arbitrators maintained by the ICA, the question of nomination by the Registrar of the ICA, as envisaged under Rule 22 of the ICA Rules, does not arise and that the claims on the FCI to the contrary are not sustainable in law. Strong reiteration is made by assigning several reasons as to why the application filed by the appellants before the High Court must be viewed to be one invoking powers under section 11(6) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate for them to entertain any contentious issues between the parties and decide the same and that the decision of the Chief Justice or his nomi nee is merely an administrative order, the nature of the function performed by them being essentially to aid the constitution of Arbitral Tribunal immediately, just by appointing an Arbitrator without wasting any time. Even in cases of refusal of the request to make an appointment of an arbitrator, this Court observed that there is no involvement of any judicial or quasi-judicial func tion and if at all the remedy could be only to invoke jurisdic tion under Article 226 of the Constitution of India seeking for a mandamus to have the reference made to an arbitrator. In the decision reported in Konkan Railway Corpn. Ltd. [2002] 2 SCC 388, dealing with the case of a challenge made to a reference and the nature of the decision taken to make the refer ence to an arbitrator, the Constitution Bench of this Court held while affirming the earlier decision that the order of the Chief Justice or his designate under section 11 nominating an arbitra tor is neither an adjudicatory order nor those functionaries could be held to be a Tribunal to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, but that such position came to be firmly settled by more than one decision of this Court, including the one rendered by the Constitution Bench, noticed above. Though, elaborate and extensive arguments have been urged on both sides to justify their respective stand or to justify the orders of the ICA and the High Court in these cases, we refrain from expressing any opinion on the same out of deference to the consistent view of this Court that such decisions have to be made or taken only by the Arbitral Tribunal itself to which the reference had been made, and avoid committing the very same mistake committed by the High Court. 13. The fact that there is an agreement between parties to have their disputes resolved by reference to an arbitration and that it should be through the ICA and in accordance with the rules or procedure prescribed by the ICA is not in controversy. As indi cated earlier even assuming without accepting for purposes of consideration that there is any infirmity in the arbitration clause which go to undermine as claimed by the respondents the legality, propriety and validity of the constitution of the Tribu nal and/or even if there be any objections as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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