Calcutta High Court
Niraj Kumar Bohra vs Union Of India & Ors on 26 June, 2009
Author: Indira Banerjee
Bench: Indira Banerjee
ORDER SHEET
A.P.No. 336 of 2009
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
NIRAJ KUMAR BOHRA
-Versus-
UNION OF INDIA & ORS.
Before:
The Hon'ble Justice INDIRA BANERJEE.
Date: June 26, 2009.
The Court: This is a composite application under
Section 11 sub-sections (6), (14) and (15) of the
Arbitration and Conciliation Act, 1996.
The petitioner has prayed for termination of the
mandate of the arbitral tribunal presided over by the
Presiding Arbitrator, Girish Kumar and has further prayed
for an order of stay of the arbitration proceedings, pending
consideration of this application for termination of the
mandate of the arbitral tribunal.
The petitioner has also prayed that an independent
and impartial arbitrator be appointed by the Hon'ble the
Chief Justice.
Disputes have apparently arisen in connection with
the contact executed by and between the petitioner and the
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respondents pursuant to tender notice no.51 of 2001-02 dated
2nd January, 2002.
From the correspondence annexed to the petition and in particular Clause 2(b) of the Memorandum of Agreement dated June 3, 2003, it appears that the provisions, instructions, terms and conditions as contained in the Eastern Railway, Engineering Department-General Conditions of Contract and Standard Specifications, 1969 with up to date amendments have been incorporated as part of the terms and conditions of the contract between the parties hereto. Extensions have also been granted by the respondent authorities upon reference to Clause 17(2) of the General Conditions of Contract, 1969.
Disputes having arisen, the petitioner invoked the arbitration clause as provided in the General Conditions of Contract, 1969 and sought reference of the disputes that had arisen between the parties to arbitration.
Pursuant to the request as aforesaid the General Manager, Eastern Railway, by a letter dated November 26, 2007 nominated a panel of four gazetted officers and requested the petitioner to suggest one or two names out of the panel as the nominee arbitrator of the petitioner. Significantly, in the aforesaid letter there was no reference to the General Conditions of Contract of 1969 or 3 to the General Conditions of Contract of 2001. The petitioner nominated P. Kumar as the petitioner's nominee arbitrator. Thereafter the General Manager, Eastern Railway appointed an arbitral tribunal comprising Shri R.P. Yadav as presiding arbitrator and Shri P. Kumar and Shri A. Bandopadhyay as co-arbitrators. The arbitral tribunal was appointed by a letter dated January 25, 2008. By the aforesaid letter the arbitral tribunal was requested to proceed as per clause No.64(3)(a)(ii) of the General Conditions of Contract, 2001.
There prima facie appears to be substance in the submission of Mr. Malay Kumar Ghosh appearing on behalf of the petitioner that the General Conditions of Contract, 2001 has no application in that the General Conditions of Contract, 1969 as amended had been incorporated as part of the contract between the parties.
Mr. Das appearing on behalf of the Railway authorities strenuously contended that the General Conditions of Contract, 2001 had already been enforced when the tender notice was published. Be that as it may, the respondent authorities consciously made the 1969 conditions applicable to the contract.
The 2001 General Conditions have also been annexed to the writ petition, along with the preface thereto, 4 wherefrom it is clear that the General Conditions of 2001 superseded the General Conditions of 1969. If the contract expressly makes the General Conditions of Contract, 1969 as amended, applicable, it is doubtful whether, after conclusion of the contract it can be contended that the General Conditions of Contract, 2001 which superseded the General Conditions of Contract, 1969 is applicable. If the respondent authorities were unable to express in the contract what they may have intended, the respondent authorities would have to suffer the consequences.
It is true that the jurisdiction of the arbitral tribunal is required to be challenged before the arbitral tribunal itself. Mr. Ghosh submitted that the objection was to be raised not later later than submission of statement of defence. The petitioner being the claimant was required to file its statement of claim and not its statement of defence.
The objection might be taken at the very inception even before filing of the claim. Section 16(2) of the 1996 Act provides that the plea of want of jurisdiction is to be raised not later than the submission of the statement of defence. The objection to the jurisdiction can be raised at the very inception even before filing any statement of claim.
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However, the import of Section (a) of Section 14 requires consideration. There is prima facie some substance in the submission that the arbitral tribunal is dejure unable to perform its function, in that the contract in terms of which the arbitral tribunal has been directed to proceed, is non existent and not at all applicable.
Let the matter be listed for final disposal on July 17, 2009. Affidavit-in-opposition be filed within July 10, 2009. Affidavit-in-reply thereto, if any, be filed within July 16, 2009.
The arbitral tribunal shall if requested by the parties adjourn the proceedings for a period of four weeks.
All parties are to act on a xerox signed copy of this order on the usual undertakings.
(Indira Banerjee, J.) cs.