Gujarat High Court
Gujarat State Road Development ... vs Ranjit Projects Pvt. Ltd & 3 on 22 September, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/2305/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2305 of 2017
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GUJARAT STATE ROAD DEVELOPMENT CORPORATION
LTD.....Petitioner(s)
Versus
RANJIT PROJECTS PVT. LTD & 3....Respondent(s)
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Appearance:
MR SIRAJ R GORI, ADVOCATE for the Petitioner(s) No. 1
MR PARAS K SUKHWANI, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 22/09/2017
ORAL ORDER
Considered the submissions of learned advocate Mr. Siraj Gori for the petitioner and learned advocate Mr. Paras Sukhwani for respondent No.1.
2. The following prayers are made by the petitioner, "(B) Be pleased to issue a writ of certiorari or a writ in the nature of certiorari or certiorarified mandamus any other appropriate writ, order or direction, quashing and setting aside the impugned order passed by the learned Arbitral Tribunal consisting of Resp. No. 2 to 5 on 27.12.2016, whereby the application preferred by the respondent company to review the order passed by the Arbitral Tribunal on 14.11.2016 was allowed by holding that the Arbitral Tribunal has power to review its own order;
(C) Pending admission and final disposal of the present petition, be pleased to pass appropriate order, staying the operation, implementation & execution of the order passed by the learned Arbitral Tribunal consisting of Resp. No. 2 to 5 on 27.12.2016, whereby the learned Arbitral Tribunal has allowed the respondent company to amend its statement of claim by exercising power to review under the Arbitration & Conciliation Act, 1996;"
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3. This Court issued Rule on 06.03.2017 and passed interim order staying the arbitration proceedings. The said order dated 06.03.2017 may be extracted with relevance as under, "2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 27.12.2016, whereby the Arbitration Tribunal has reviewed the earlier order dated 14.11.2016.
3. Mr. Gori, learned advocate for the petitioner submitted that the Tribunal has no jurisdiction to review its own order. It is pointed out that the said ground was raised before the Arbitration Tribunal and has thus exercised the jurisdiction not vested in it.
4. As against this, Mr. Sukhwani has opposed the petition and relying upon the judgment of the Apex Court in the case of M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd. & Anr., AIR 2006 SC 450, more particularly, Paragraphs 44 and 45, contended that the order impugned is proper.
5. Having heard the learned advocates appearing for the respective parties and considering the grounds raised in the petition, the matter requires consideration. Hence, Rule returnable on 5.4.2017. Mr. Sukhwani, learned advocate waives service of Rule on behalf of respondent no.1. Meanwhile the arbitration proceedings stands stayed."
4. The respondents herein approached the Apex Court against the aforesaid order dated 06.03.2017 by filing Special Leave Petition (C) No. 10201 of 2017 which was disposed of as per order dated 11.09.2017.
5. The order passed by the Supreme Court reads as under, "1. Leave granted.
2. The present proceeding arises out of an Page 2 of 4 HC-NIC Page 2 of 4 Created On Mon Oct 02 03:58:54 IST 2017 C/SCA/2305/2017 ORDER application for amendment having been made to amend the claim before the Arbitral Tribunal. This application was dismissed vide order dated 13th November, 2016 by the Arbitral Tribunal. In an application to recall the aforesaid order, vide order dated 27th December, 2016 the Tribunal recalled the aforesaid order and allowed the amendment. The respondents before us then applied on 5th August, 2017 to the Arbitral Tribunal under Section 16 of the Arbitration and Conciliation Act, 1996, stating that the amended claim was beyond the scope of the arbitral proceedings and, therefore, be set aside on this ground alone. This met with no success as the Tribunal dismissed the said application stating that the amended claim was within the scope of the reference and that it had the competence and jurisdiction to decide it. Meanwhile, the respondents had, on 4th February, 2017, gone against the order dated 27th December, 2016 to the High Court in Special Civil Application 2305 of 2017, in which the High Court, by an order dated 6th March, 2017, stayed the further proceedings in the arbitration and set down the Special Civil Application for hearing.
3. The appellant is before this Court against the impugned order dated 6th March, 2017.
4. We are of the view that the High Court erred in interfering with, at this juncture, and staying the proceedings under Article 227 of the Constitution of India. Section 5 of the Arbitration and Conciliation Act, 1996 clearly interdicts judicial intervention except where so provided in this part. No doubt this does not mean that a proceeding under the Constitution can be interdicted, but all the same that the High Court will keep Section 5 in mind while exercising discretion under Article 227 in the midst of an arbitral proceeding. According to us, the High Court was in error in interdicting the arbitral proceeding at this stage.
5. Further, regard also being had to the fact that after having filed the said petition before the High Court, the respondents went back to the Arbitral Tribunal in a petition under Section 16 of the 1996 Act albeit and without prejudice to their rights and contentions, we are of the view that the arbitral proceedings must carry on and culminate in an arbitral award. It is only thereafter that the respondents can challenge the award that is passed by the Tribunal on the ground raised under Section
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6. With these observations, the impugned order is set aside and the appeal is disposed of."
6. In view of above developments and in particular, the order of the Apex Court as above, learned advocate for the respondent rightly submitted, which could not be disputed by the side of the petitioner, that after the order of the Supreme Court as above, nothing survives in this petition.
7. The petition is not required to be dealt with as not surviving. Accordingly, the same is disposed of as dismissed. Rule is discharged.
(N.V.ANJARIA, J.) chandrashekhar Page 4 of 4 HC-NIC Page 4 of 4 Created On Mon Oct 02 03:58:54 IST 2017