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TMI Blog2015 (2) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... le Arbitrator, in terms of the dispute resolution mechanism under the Permanent Machinery of Arbitrators (hereinafter 'PMA'), was allowed. 2. The parties are Central Public Sector Enterprises of the Government of India and as per the executive orders issued by the Government, had agreed for resolution of their disputes through the mechanism of PMA. The principal controversy in this petition involves the question whether a writ petition would be maintainable against an appellate award made under the PMA. 3. Briefly stated, the facts relevant for considering the controversy in the present petition are that SAIL awarded a contract (No.P/Proj/Modn/4011899105/140062) dated 13.11.1991 to EPIL for commissioning of a new Calcining Plant at its st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw Secretary, Department of Legal Affairs, Ministry of Law & Justice, Government of India. Upon such reference the dispute shall be decided by the Law Secretary or the Special Secretary / Additional Secretary, when so authorized by the Law Secretary whose decision shall bind the Parties finally and conclusively. The parties to the dispute will share equally the cost of arbitration as intimated by the Arbitrator. " 5. Thereafter, SAIL initiated proceedings under PMA and filed its claim before the Sole Arbitrator - Joint Secretary, Ministry of Heavy Industries and Public Enterprises. SAIL in its claim alleged that it was under compulsion to undertake additional burden of finance, services, material and execution to ensure completion of work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim Rs. 3,60,00,000/- with reduced rate of interest from 12% p.a to 10% p.a. from 22.08.2002. 8. SAIL contended that the appellate award dated 16.04.2012 passed by the Appellate Authority was patently arbitrary, illegal, perverse and not based on any material as the said award ignored the pleadings of the parties, provisions of the contract, evidence produced, submissions and arguments made before the Sole Arbitrator and the finding of facts returned by the Sole Arbitrator in the award dated 16.05.2011. 9. EPIL contended that in line with the scheme of the PMA and the arbitration clause, the dispute between the parties was referred to a Sole Arbitrator and any appeal challenging the award of the Sole Arbitrator could only be filed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... con International Limited v. National Building Construction Corporation Limited: EFA (OS) No. 22/2006, decided on 28.11.2008 and this court held that:- "28. So far as the part in the arbitration clause in the said agreement regarding the non-applicability of the Act of 1996 is concerned, we consider that it is void and the parties cannot by themselves exclude the statue itself which is being drafted by the Legislature to look after the arbitration matters." In the circumstances, SAIL's grievenace that the arbitration agreement under the PMA excludes judicial review does not survive as recourse to courts, albeit, to a limited extent would be available. 13. Intrestingly, SAIL has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A and/or the provision of a two tier arbitration procedure in its petition. Secondly, this is contrary to SAIL's conduct in other proceedings. In another case - W.P. (C) No.7970/2012, which also relates to arbitration proceedings under the PMA in respect of disputes with EPIL, SAIL had preferred an appeal against an award made by an arbitrator before the Appellate Authority and has pressed for its right to the appellate remedy provided under the PMA, before this court. 15. I am also of the view that a two tier arbitration procedure does not fall foul of the A&C Act. An arbitration agreement providing for an appellate procedure was permissible under the Indian Arbitration Act, 1899 as well as Arbitration Act, 1940. The Calcutta High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing observations of the Bombay High Court are relevant:- "The intention of the parties is to be sole guide for determining the mode of working out the submission and reaching a final decision till the law of arbitration is based upon the principles of withdrawing the disputes from the ordinary Courts and enabling the parties to substitute a domestic tribunal. Once a Tribunal reaches a final decision, as contemplated or agreed upon by the parties, the Arbitration Act as it was enforced come to the help to the parties to enforce the same decision." 17. The aforesaid principle is equally applicable to the A&C Act and there is no provision in A&C Act that proscribes a two tie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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