Karnataka High Court
T G Shet vs The Managing Director on 18 October, 2012
Author: A.S.Bopanna
Bench: A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 18TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE A.S.BOPANNA
CMP NO.208/2011
BETWEEN:
SRI.T.G.SHET,
AGE: 65 YEARS, OCC: P.W.D.CONTRACTOR,
R/O OLD INCOME TAX OFFICE ROAD,
VIDYANAGAR, HUBLI.
... PETITIONER
(BY SRI.V.G.BHAT, ADV)
AND:
1. THE MANAGING DIRECTOR,
NWKRTC CENTRAL OFFICE,
GOKUL ROAD, HUBLI.
2. THE EXECUTIVE ENGINEER,
NWKRTC C.E. DIVISION,
BELGAUM.
... RESPONDENTS
(BY SRI. SUNIL L.DESAI, ADV.)
THIS CMP IS FILED UNDER SECTION 11(6) OF THE
ARBITRATINO AND CONCILIATION ACT, 1996 PRAYING TO
APPOINT A SOLE ARBITRATOR TO ADJUDICATE THE DISPUTE
BETWEEN THE PETITIONER AND RESPONDENTS IN RESPECT
OF CLAIM MADE BY THE PETITIONER IN HIS LETTER DATED
10.04.2004 ARISING OUT OF THE CONTRACTUAL OBLIGATIONS
IN AGREEMENT DATED 23.09.1999 IN THE ENDS OF JUSTICE.
2
THIS CMP COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court praying that an arbitrator be appointed to adjudicate the dispute between the petitioner and the respondents in respect of the claim made by the petitioner vide his letter dated 10.04.2004.
2. Heard the learned counsel for the parties and perused the petition papers.
3. At the outset, on hearing the learned counsel, it is seen that in the contract entered into between the parties, though several clauses relating to the settlement of disputes at different stages are provided, the same are internal mechanism where the requests are made to the higher authorities and the Engineer concerned to resolve the issue. The said indications cannot be considered in the nature of arbitration clause to be relevant to an independent arbitration either agreed upon between the parties or to be appointed by 3 this Court. However, what is to be noticed in the instant proceedings is that, notwithstanding the said position, the petitioner herein filed an arbitration case No.1/2005 before the 1st Addl. Civil Judge (Sr.Dn.), Hubli under section 8 of the Arbitration and Conciliation Act seeking appointment of the arbitrator.
4. Though at that stage, a direction is issued by the Court below and certain panel of arbitrators had been furnished to the Court, the respondents herein had assailed the very filing of the arbitration case before the Court below, since the said Court could not have exercised jurisdiction under Section 8 of the Act. In that regard, the respondents herein were before this Court in W.P.No.5653/2008. This Court by its order dated 07.09.2011 had taken note of the legal position that an independent application under Section 8 could not have been filed seeking appointment of arbitrator and even if the parties had agreed upon a arbitration clause, the appropriate remedy would be to file a petition before the 4 designate Judge under Section 11 of the Arbitration and Conciliation Act. It is in view of the said observation, the petitioner is before this Court.
5. Though the learned counsel for the petitioner seeks to justify the filing of the instant petition by referring to the said order, it cannot be in doubt that when the Act or any legal provision does not vest the Court with the jurisdiction, the Court cannot assume jurisdiction in that regard. If this basic legal position is kept in view, when it is not pointed out that there is an arbitration clause under the agreement, this Court also cannot exercise its jurisdiction to appoint an arbitrator as provided under Section 11 of the Act. Therefore, the prayer made in the petition cannot be granted.
6. At this stage, the learned counsel for the petitioner would contend that, he had been litigating in this regard from the year 2005 and if he has to approach the appropriate forum, he shall not be shunted out only on the ground of limitation. Though at this juncture, nothing can be said in 5 that regard. The petitioner would do well to avail of the remedy available to indicate that he was prosecuting the litigation in an alternate forum, which did not have jurisdiction and accordingly, seek to compute the limitation.
In terms of the above, the petition is dismissed. No order as to costs.
Sd/-
JUDGE MBS/-