Punjab-Haryana High Court
Punjab Agricultural University ... vs Associates Construction on 9 May, 2003
Equivalent citations: 2003(3)ARBLR32(P&H), (2003)134PLR738
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. This order shall dispose of Civil Revisions No. 433 and 434 of 2002 as the common questions of law and facts are involved in these petitions. For the sake of convenience, the facts are being taken from Civil Revision No. 433 of 2002.
2. An application under Section 14 of the Limitation Act has been filed by the applicant-petitioners for exclusion of the period spent by them for filing an appeal before the learned Additional District Judge. The delay in filing the appeal is condoned.
3. An application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") was filed by the respondent M/s Associates Construction Company against the Punjab Agricultural University and its Executive Engineer (the present petitioners). A prayer was made by the applicant for appointment of an Arbitrator by the Court, Additionally, it was prayed that since under Clause 25-A of the agreement, the Chief Engineer of the University was the named Arbitrator, and the aforesaid Chief Engineer was the Chairman of the Tender Purchase Committee, therefore, the aforesaid Chief Engineer may not be named as an Arbitrator. This application filed by respondent No. 1 was contested by the University and its Executive Engineer, Various objections were raised to the maintainability of the application. On the merits of the controversy, a specific objection was taken that since under Clause 25-A of the agreement it was the Chief Engineer who was the named Arbitrator, therefore, the applicant could not ask for the change of the Arbitrator on the ground of his being an officer of the University. It was further the case of the University that Sh. H.S. Shekhon who was the Chief Engineer of the University was the only person who could arbitrate between the parties and therefore, the application filed by respondent No. 1 was not maintainable.
4. The learned trial Court observed that since there was dispute between the parties which needed to be referred to the Arbitrator and because of the facts brought on the record by the applicant, it was not proper to refer the same to the arbitration of Sh. H.S. Shekhon. Instead the parties were asked to supply the list of three experienced persons who could be appointed as an Arbitrator. Vide order dated February 21, 2002, the learned trial Court asked the parties to agree on two names from the joint list submitted by the parties. The aforesaid order dated February 21, 2000 passed by the learned trial Court was challenged by the present petitioners by filing an appeal before the learned Additional District Judge, Ludhiana. The matter was pending before the learned Additional District Judge, Ludhiana when it was realised that he had no jurisdiction to deal with the appeal. Accordingly, the present petition has been filed to challenge the aforesaid order.
5. Sh. Agnihotri, the learned counsel for the petitioned has submitted that the trial Judge has completely misread the provisions of the Act since it could not have appointed any Arbitrator beyond the written agreement between the parties. Sh. Agnihotri has submitted that even if the applicant-respondents had any grievance or any objection with regard to the continuation of Sh. H.S. Sekhon as an Arbitrator, then the only course to challenge his jurisdiction was by taking resort to proceedings under the Act. Sh. J.R.Mittal, the senior Advocate appearing for the respondents has submitted that although there was an arbitrator by designation in Clause 25-A of the agreement but all the same, since the present incumbent Sh. H.S. Shekhon himself was the Chairman of the Tender Purchase Committee, therefore, he could not act as an Arbitrator.
6. I have given my thoughtful consideration to the entire matter arid find that there is a merit in the pleas raised by Sh. Agnihotri, the learned counsel for the petitioners.
7. It has been laid down by a Division Bench of this Court in the case of Herike Rice Mills, Mehalkalan, District Sangrur v. State of Punjab and Ors., (1998-1)118 P.L.R. 395 that the Arbitration and Conciliation Act itself provided that a party objecting to the appointment of an Arbitrator or his continuation has to submit to his jurisdiction and challenge the same in accordance with law. Under the provisions of Section 16 of the Arbitration and Conciliation Act, the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement. Another Division Bench judgment of this Court in CWP No. 7696 of 1997 Satish Chander Gupta and Sons v. Union of India and Ors., decided on September 4, 2002 (to which I was also a party) following the law laid down in Herike Rice Mills's case (supra), further held that the only remedy available to an aggrieved party against proceedings is to take recourse to the provisions under Section 16(7) of the Act. Even if any such objection raised by a party was overruled by an Arbitrator, still the party could challenge the order of the Arbitrator alongwith the final arbitral award.
8. In view of the aforesaid law and laid down in the case of S. Herike Rice Mills (supra) and M/s Satish Chander Gupta and Sons's case (supra), the present revision petition is allowed. The order dated February 21, 2000 passed by the learned trial Court is set aside and a liberty is granted to respondent No. 1 to raise the dispute, if any, in accordance with law. It is, however, fairly agreed by Sh. Agnihotri the learned counsel for the petitioner-University that if any such dispute is now sought to be referred by respondent No. 1 within a period of six weeks from today in accordance with Clause 25-A of the agreement, then no objection with regard to the limitation would be raised by the University or its officials.
9. The revision petition stands disposed of accordingly.
10. No costs.
11. A copy of this order be given dasti to learned counsel for the parties on usual charges.