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TMI Blog2003 (7) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... d to as the "Act" for short). The learned judge of the Delhi High Court acting as designate or nominee of the Chief Justice, in exercise of his powers under section 11 of the Act, by his order dated 7-12-2000 came to the conclusion that no agreement in writing having been executed by the parties with an arbitration clause, the prayer made by the appellant for seeking a reference of the disputes raised to Arbitral Tribunal has to be rejected. 3. Aggrieved by refusal of the learned judge of the Delhi High Court to make a reference to the arbitration, the appellant corporation filed a writ petition in the High Court of Delhi. The Division Bench of the High Court by the impugned order dated 29-8-2001 came to the same conclusion that there exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to invoke the said arbitration clause. 7. Learned Senior Counsel appearing for the appellant relies on a three-Judge Bench decision of this Court in Konkan Railway Corpn. Ltd. v. Mehul Construction Co. [2000] (7) SCC 201 and the Constitution Bench Judgment of this Court in Konkan Railway Corpn. Ltd. v. Rani Construction (P.) Ltd. [2002] (2) SCC 388. On behalf of the appellant, it is argued that, as has been held by this Court in the cases (supra), the nominee or designate of the Chief Justice, when its power is invoked under section 11 of the Act, merely exercises administrative functions and, there-fore, has no jurisdiction to adjudicate upon the contentious issues between the parties on 'the existence or the validity of the arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Babu of this Court acting as designate of the Chief Justice of India while exercising powers under section 11 of the Act, observed thus : "I am conscious of the fact that M. Jagannadha Rao, J., in Wellington Associates Ltd. v. Kirti Mehta [2000] 4 SCC 272 held that the jurisdiction of the nominee of the Chief Justice of India to decide the question is not excluded by section 16 of Act and such a power can be exercised in a suitable case. On this basis, it is no doubt permissible under section 11 of the Act to decide a question as to the existence or otherwise of the arbitration agreement but when the correspondence or exchange of documents between the parties are not clear as to the existence or non-existence of an arbitration agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the panel of Indian Council of Arbitration. In the context of that dispute, this Court observed thus : "Unfortunately, the High Court in this case seems to have proceeded to adopt an adjudicatory role and returned a verdict recording reasons as to the very existence or otherwise of the agreement as well as the tenability and legality or otherwise of making a reference to an arbitrator." ****** "As indicated 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 Tribunal and/or even if there be any objections as to the existence of an enforceable or v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench of the High Court in exercise of power under article 226 of the Constitution both acted under a misconception of law and wrongly held that the disputes were not referable to the arbitration. The appellant sought reference of its disputes with the respondent/company for adjudication through the arbitration in accordance with arbitration clause in the alleged agreement arrived at between them. Whether on the facts mentioned above an arbitration agreement can be said to have existed by recourse to arbitra- tion clause in NIT was itself a dispute which deserved to be referred to the Arbitral Tribunal in accordance with the arbitration clause. Section 16 empowers the Arbitral Tribunal to decide the question of existence and validity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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