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TMI Blog2002 (3) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... ronmental, economic, financial and legal analysis of the three targeted companies identified through the "Search Screen Process". 4. Pursuant to and in furtherance of the said agreement, services of sub-consultants were taken to prepare "Due Diligence Report" wherefor a service agreement was executed between the parties on 31-3-1995. 5. The said report was delivered to the petitioner and the final version of the plant acquisition project was submitted on 13-9-1995, recommending acquisition of M/s. Mulberry Phosphates Inc., namely, the Peney Point Chemical Plant and the Wingate Creek Mine. 6. Disputes and differences arose as the petitioner herein allegedly withheld payments against the outstanding invoices. 7. Allegedly both the service agreements provide for reference of disputes to arbitration. 8. The respondent herein filed an arbitration application, which was marked as A.A. No. 109 of 1996. 9. However, the said arbitration agreement was vague inasmuch as no procedure for appointment of an arbitrator had been laid down therein nor the said agreement provides for the number of arbitrator constituting arbitral Tribunal. 10. Various contentions have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges of this court, namely, Justice P.K. Bahri and Justice Jaspal Singh were appointed as the arbitrators to decide the disputes between the parties and to appoint a third arbitrator. 14. A Special Leave Petition was filed against the said judgment before the Supreme Court of India, which was marked as Petition for Special Leave to Appeal (Civil) No. 20997 of 2001. 15. Having regard to the decision of the Constitution Bench of the Apex Court in Konkan Railway Corpn. Ltd. v. Rani Construction P. Ltd. [2002] (1) SCALE 465 delivered on 30-1-2002, the said SLP was withdrawn on 11-2-2002. This writ petition has thereafter been filed. 16. Ms. Bindu Saxena, the learned counsel appearing on behalf of the petitioner would inter alia argue that the purported arbitration agreement being vague, as no fixed procedure having been laid down therein, the impugned judgment cannot be sustained. Strong reliance has been placed in this connection on Konkan Railway Corpn. Ltd. v. Mehul Construction Co. [2000] 7 SCC 201, Wellington Associates Ltd. v. Kirit Mehta [2000] 4 SCC 272 and Teamco (P.) Ltd. v. T.M.S. Mani AIR 1967 Cal. 168. 17. Strange though it may seem to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (6) of section 11 of the Act provides a cure to these problems by permitting the aggrieved party to request the Chief Justice or any person or institution designated by him to take the "necessary measure", i.e., to make the appointment, unless the agreement on the appointment procedure provides other means for securing the appointment, and such means fail to secure the appointment, the aggrieved party may request the Chief Justice or any person or institution designated by him to make the appointment and the other party will not be competent to opt out of such procedure. Sub-section (6) of section 11 of the Act aims at removing any deadlock or undue delay in the appointment process. 23. In the instant case, procedures have been laid down by the parties - in that they agreed that the provisions of Law of India operating in the field shall govern the procedure. Both the 1940 Act and the 1996 Act provide for the procedures in this behalf unless the parties otherwise agree, the same must be followed. 24. In First Konkan Railway s case, an order passed by the Chief Justice or his designate in the nomination of an arbitrator was held to be an administrative order. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the two arbitrators appointed by the parties and nominate an arbitrator. This is to enable the arbitral Tribunal to be expeditiously constituted and the arbitration proceedings to commence. The function has been left to the Chief Justice or his designate advisedly, with a view to ensure that the nomination of the arbitrator is made by a person occupying high judicial office or his designate, who would take due care to see that a competent, independent and impartial arbitrator is nominated." It was further observed: "22. It might also be that in a given case the Chief Justice or his designate may have nominated an arbitrator although the period of thirty days had not expired. If so, the arbitral tribunal would have been improperly constituted and be without jurisdiction. It would then be open to the aggrieved party to require the arbitral tribunal to rule on its jurisdiction. Section 16 provides for this. It states that the arbitral tribunal may rule on its own jurisdiction. That the arbitral tribunal may rule "on any objections with respect to the existence or validity of the arbitration agreement" shows that the arbitral tribunal s authority under section 16 is not confined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, agrees to go to Arbitration of two persons and then participates in the proceedings. On the contrary there would be waste of time, money and energy if such a party is allowed to resile because the Award is not of his liking. Allowing such a party to resile would not be in furtherance of any public policy and would be most inequitable." 29. In any event, all questions including the question of improper constitution can only be raised before the arbitral Tribunal. 30. We may notice that even in Konkan Railway Corpn. Ltd. s case ( supra ), it has been held: "8. Special Leave Petition (Civil) No. 19549 of 1999 is directed against the order of the learned Chief Justice of the Gauhati High Court, refusing to appoint an arbitrator, after entertaining contentious issues and deciding the said issues by elaborate consideration, on a finding that there is no valid agreement for arbitration. Even if it was not open for the learned Chief Justice to entertain the contentious issues and decide the same, but since the ultimate order is administrative in nature, as has been held by us and since the learned Chief Justice does not function as a court or tribunal, the order cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The nature and the extent of the writ jurisdiction conferred on the High Courts by Article 226 was considered by this Court as early as 1955 in T.C. Basappa v. T. Nagappa 1955-1 SCR 250 at pp. 256-8 (AIR 1954 SC 440 at pp. 443-44). It would be useful to refer to some of the points elucidated in this judgment. The first point, which was made clear by Mukherjea, J., who spoke for the Court, was that: "in view of the express provisions in our Constitution, we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law." One of the essential features of the writ, according to Mukherjea, J., is: "that the control which is exercised through it over judicial or quasi-judicial Tribunals or bodies is not in appellate but supervisory capacity. In granting a w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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