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TMI Blog2003 (11) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... ts clearly indicate that claims over and above Rs. 50,000 shall be decided by a competent Civil Court having jurisdiction over the matter and hence the Council has no jurisdiction to entertain the claim in the absence of a valid and subsisting agreement to refer the matter to arbitration. 3. After hearing both the Counsels representing the respective parties, the Council aforesaid made the following order: "1. This claimants application is with in the clause of limitation as per the parliamentary enactment. 2. The terms and agreements between the petitioner claimant and respondent is internal which cannot dictates the parliamentary enactment 32/1993, amendment 23/1998 and establishment of the councils for arbitration. Further after going through the pre-conditions fulfilled by the claimant and merits of the case and also as per the powers delegated in Act and as per clause 16(5) of the competence of arbitral rules on its jurisdiction the council hereby rejected the plea of the respondent and decided to continue with the Arbitral proceedings." The said orders, as already aforesaid, are impugned in these Civil Revision Petitions by the Superintending Engineer, N.S.R.C. Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conciliation Act, 1996, in general and sections 16(5), 16(6) and section 34 of the Arbitration and Conciliation Act, 1996, in particular. The learned Counsel also had explained in detail how the question of limitation would not arise at all. The learned Counsel with all emphasis contended that the Council aforesaid cannot be deemed to be a "Tribunal" since there is no adjudicatory power vested in the Council and at the most it can be said to be a statutory body or an administrative authority empowered to pass orders on administrative side to implement the provisions of the Act and hence the remedy if any available to the petitioner is elsewhere and definitely not by filing these Civil Revision Petitions under Article 227 of the Constitution of India. 6. Heard both the Counsels at length and also perused the reasons, which had been recorded in the impugned orders by the Council, in these Civil Revision Petitions. 7. M/s. R.K. Engineering, the respondent in these Civil Revision Petitions, moved applications C.M.P. No. 21712/2003 in C.R.P. No. 4021/2003 and C.M.P. No. 23051/2003 in C.R.P. No. 4022/2003 to vacate the interim stay granted by this Court and at that stage both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The amount due from a buyer, together with the amount of interest calculated in accordance with the provisions of sections 4 and 5, shall be recoverable by the supplier from the buyer by way of a suit or other proceeding under any law for the time being in force. 2. Notwithstanding anything contained in sub-section (1), any party to a dispute may make a reference to the Industry Facilitation Council for acting as an arbitrator or conciliator in respect of the matters referred to in that sub-section and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such disputes as the arbitration or conciliation were pursuant to an arbitration agreement referred to in sub-section (1) of section 7 of that Act. 11. Section 7 of the Act deals with Appeal. Section 7A of the Act dealing with Establishment of Industry Facilitation Council reads: "The State Government may, by notification in the Official Gazette, establish one or more Industry Facilitation Councils at such places exercising such jurisdiction and for such areas, as may be specified in the notification." 12. Section 7B of the Act dealing with Composition of Industry Facilitation Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he is otherwise entitled so to do. (3) The Council may require any claimant to paid any better statement on particulars of claim or any further documents in support of the claim as it may consider necessary for the purpose of the proceedings and if the claimant fails or omits to do so within thirty days of the receipt of such communication or within such further time as the Council may, for sufficient cause, allow, the Council to terminate the proceedings without prejudice to the right of the claimant to make any fresh reference if he is otherwise entitled so to do. 7. Challenge of member. (1) On receipt of a statement of claim every member shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality and any such disclosure shall be sent to the parties along with the notices in Form 2 calling for a statement of defence and thereafter the requirements of sub-section (2) of section 12 of the Arbitration and Conciliation Act shall apply. (2) The grounds for challenge of a member and the procedure for challenge shall be in accordance with sections 12 and 13 of the Arbitration and Conciliation Act. (3) On a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit, the Council shall call upon the claimant to pay that share also within fifteen days of receipt of the notice; Provided further that if the claimant has not paid the aforesaid share, the Council may suspend or terminate the proceedings. (3) At the first hearing, the Council shall not proceed to enter upon the merits of the subject-matter in dispute, till it has decided on any challenge to jurisdiction or any challenge to any of its members. (4) The Council shall decide whether to hold oral hearings for the presentation of evidence or for total argument, or without proceedings shall be conducted on the basis of documents and other materials: Provided that the Council shall hold oral hearings at an appropriate stage of the proceedings, on request by a party, unless the parties have agreed that no oral hearing shall be held. (5) The parties shall be given sufficient advance notice of any hearing and of any meeting of the Council for the purposes of inspection of documents, goods or other property. (6) All statements, documents or other information supplied to, or applications made to the Council by one party shall be communicated to the other party, and any expert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitration and Conciliation Act; (2) The Arbitral award shall be stamped in accordance with the relevant law in force. 16. The Arbitration and Conciliation Act, 1996 (Act 26 of 1996), is an Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. Section 2 of the Arbitration and Conciliation Act, 1996 deals with Definitions and section 2( c ) defines "arbitral award" as: "arbitral award includes an interim award" Section 2(4) of the Arbitration and Conciliation Act, 1996 reads : "This part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder." 17. Section 7 deals with Arbitration agreement and the said provision reads as hereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all cases, the arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction." 20. Section 31 of the Arbitration and Conciliation Act, 1996 deals with Form and contents of arbitral award and the said provision reads as hereunder: (1)An arbitral award shall be made in writing and shall be signed by the members of the arbitral Tribunal. (2)For the purposes of sub-section (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the members of the arbitral Tribunal shall be sufficient so long as the reason for any omitted signature is stated. (3)The arbitral award shall state the reasons upon which it is based, unless, ( a )the parties have agreed that no reasons are to be given; or ( b )the award is an arbitral award on agreed terms under section 30. (4)The arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place. (5)After the arbitral award is made, a signed copy shall be delivered to each party. (6)The arbitral Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of the opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper. (4)Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted. 22. Sub-section (1) of the Indian Evidence Act, 1872, no doubt specifically excludes the applicability of its provisions to the proceedings before an arbitrator. Elaborate submissions were made on the buyer and supplier relationship and the meaning of deemed acceptance and over-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess to say that the Council which is expected to discharge quasi-judicial functions is bound to record reasons and bound to follow the principles of natural justice by recording reasons whenever such objections of far reaching consequences relating to jurisdictional aspect and limitation aspect are specifically raised. In the light of the definition of the "arbitral award" it is clear that the impugned orders do not fall within the meaning of "arbitral award", either interim or final, in view of section 16(5) read with section 34 of the Arbitration and Conciliation Act, 1996 and hence elaborate submissions made by the Counsel in this regard representing the respondent cannot be accepted that an alternative remedy is available to the Revision petitioner under section 34 of the Arbitration and Conciliation Act, 1996. On the question of jurisdiction and limitation, reliance was placed on the following decisions : State of Rajasthan v. Ram Kishan AIR 1977 Raj. 165, Panchu Gopal Bose v. Board of Trustees for Port of Calcutta [1993] 4 SCC 338, State of A.P. v. Tippireddy Channareddy [1998] (1) ALD 441, M.V.V. Satyanarayana v. Union of India [1998] (5) ALD 582, Kolleri Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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