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TMI Blog2022 (5) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... intment of sole Arbitrator once award is being quashed by the competent court of law. This Court, after taking into consideration the aforesaid proposition of law, as has been settled by the Hon'ble Apex Court and after going across the facts of the given case, wherefrom, it is evident that even though the award was pronounced on 20.12.2005 which was affirmed by the Court in exercise of power conferred under Section 34 of the Act, 1996, but, has been quashed and set aside by this Court in exercise of power under Section 37 of the Act, 1996 and subsequent thereto, the Hon'ble Apex Court has also affirmed the order passed by this Court in exercise of power conferred under Section 37 of the Act, 1996, is of the view that the dispute remain unresolved, therefore, if application under Section 11(6)(C) of the Act, 1996 has been filed by the petitioner/applicant, the same cannot be held to be not maintainable. This Court, in view of the aforesaid finding, is of the considered view that a fresh Arbitrator is required to be appointed, so that the claim in question be resolved - Application allowed. - Arbitration Application No.03 of 2021 - - - Dated:- 2-3-2022 - MR. SUJIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngineer-in-Chief, P.W.D. R.E.O. Govt. of Jharkhand, Ranchi was appointed as sole Arbitrator and was directed to enter into the reference and give an award within two months from the date of entering into the reference. The award was prepared by the sole Arbitrator on 20.12.2005. The State of Jharkhand, being aggrieved with the award, has challenged the same by taking recourse of Section 34 of the Act, 1996. The Court, after hearing the same under Section 34 of the Act, 1996 being Misc. Case No. 05 of 2006, has dismissed the aforesaid application by confirming the award. The State of Jharkhand, being aggrieved with the order dated 21.12.2017 passed in Misc. Case No. 05/2006 has preferred an appeal by taking recourse of Section 37 of the Act, 1996. The award dated 20.12.2005 published by the sole Arbitrator, Mr. C.K. Singh, retired Engineer-in-Chief, PWD, Jharkhand as also the order dated 21.12.2017 passed in Misc. Case No. 05/2006 have been quashed and set aside vide order dated 27.06.2019 (Annexure-6). The petitioner has challenged the aforesaid order by filing Special Leave Petition (Civil) Nos. 14340/2020 before the Hon'ble Apex Court which was dismissed vide o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the contract has been resorted to by making request before the concerned competent authority of the State of Jharkhand for appointment of sole Arbitrator. The concerned competent authority of the State of Jharkhand has appointed the Arbitrator, thereby, the petitioner/applicant has approached to this Court by filing the arbitration application being A.A. No. 39 of 2001 by taking recourse of the mandate of Law as available under Section 11(6)(C) of the Act, 1996. 10. This Court, while disposing of the arbitration application being A.A. No. 39 of 2001, has appointed Mr. C.K. Singh, Retd., Engineer-in-Chief, P.W.D. as the sole Arbitrator for resolution of dispute within the stipulated period of two months. The sole Arbitrator has commenced the arbitration proceedings and passed the award dated 20.12.2005 in favour of the petitioner/applicant by passing the order to the effect that:- I direct Respondent to pay as per Award made above Rs. 1,97,32,424/- (Rupees One Crore Ninety Seven Lacs Thirty Two Thousand Four Hundred Twenty Four only) together with future interest @ 18% till the date of actual payment from 31st December 2005 (The date of Award is 20th December 2005 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng through the averments made in the counter affidavit has found therefrom that the claim of the petitioner/applicant has been rejected since no liberty having been granted by the Court passing the order under Section 37 of the Act, 1996, therefore, this Court is required to answer the following questions:- (i) Whether, in absence of any liberty granted by the Court passing the order under Section 37 of the Act, 1996, can an application under Section 11(6)(C) be held to be maintainable? (ii) Whether, in a case, where the award has been quashed by the competent court, the disputes remained unresolved, can be allowed to be resolved by appointment of Arbitrator again? 13. Since both the issues are interlinked, therefore, the same are being discussed and answered hereinbelow together. 14. There is no dispute about the position of law that the second application is not maintainable in absence of any leave by the competent court. But, in a case of resolution of dispute, can such principle be held to be applicable, that is the question to be considered by this Court, while answering the aforesaid issues. The Arbitration and Conciliation Act, 1996 has been enacted for resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the principle of natural justice, since according to the order passed under Section 37 of the Act, 1996, the mandate as provided under Section 24(1) of the Act, 1996, was not followed by the sole Arbitrator, thereby, the court while passing the order in exercise of power conferred under Section 37 of the Act, 1996 has gone into the principle of natural justice i.e., the technicality and on that ground, the award has been quashed and set aside. Thus, there is no dispute about the fact and no dispute has also been raised on behalf of the respondent State of Jharkhand that the dispute which was the subject matter of the original application filed under Section 11(6)(C) of the Act, 1996, remain un-conclusive. 17. Therefore, the question of maintaining a fresh application under Section 11(6)(C) of the Act, 1996, as has been raised on behalf of the State of Jharkhand, according to the considered view of this Court, is not tenable in the eye of law, reason being that if the instant application will be held to be not maintainable then the dispute which is the subject matter of the contract, will remain undecided. 18. This Court, has come to the aforesaid finding, after conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be raised if it is beyond the scope of his authority. It was required to be raised during arbitration proceedings or soon after initiation thereof. The jurisdictional question is required to be determined as a preliminary ground. A decision taken thereupon by the arbitrator would be the subject-matter of challenge under Section 34 of the Act. In the event the arbitrator opined that he had no jurisdiction in relation thereto an appeal there against was provided for under Section 37 of the Act. 52. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court's jurisdiction by opting for arbitration as they pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble Apex Court has also affirmed the order passed by this Court in exercise of power conferred under Section 37 of the Act, 1996, is of the view that the dispute remain unresolved, therefore, if application under Section 11(6)(C) of the Act, 1996 has been filed by the petitioner/applicant, the same cannot be held to be not maintainable. 20. This Court, in view of the aforesaid finding, is of the considered view that a fresh Arbitrator is required to be appointed, so that the claim in question be resolved. 21. In view thereof, the instant application is fit to be allowed, accordingly, the same is allowed. 22. Learned counsel for the parties, in course of argument, has suggested the name of Mr. Sudhir Kumar Katriar, Former Judge of the Patna High Court as the sole Arbitrator. 23. This Court, considering the suggestion put-forth by the learned counsel for the parties about the name of sole Arbitrator, is hereby appoint Mr. Sudhir Kumar Katriar, Former Judge of the Patna High Court presently residing at Flat No. 101, Tower No. 12, Supreme Enclave, (Opp. Ahlcon School), Mayur Vihar Ph-1, New Delhi-110092, Mob. No. 8527937916, 8527937917, as the sole Arbitrator, subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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