Indian Kanoon - Search engine for Indian Law

6. In the present case, when the matter was approached by the respondent herein before the Engineer, he declined and therefore, the matter was referred to arbitration and the Arbitrators initiated the proceedings. In that a counter-claim was made. The counter-claim pertained to the issues which have already been settled in the minutes of meeting of 6th/7th April, 2000. Therefore, the stand taken by the respondent against the counter- claim was that it is without jurisdiction and it is not arbitrable because the counter-claim Nos. 1 to 7 have already been settled by the minutes of the meeting dated 6th/7th April, 2000. The Arbitrators after considering the counter-claim came to the finding that as per the minutes of meeting dated 6th/7th April, 2000 the counter-claims have already been settled. Each of the counter-claim was examined by the arbitrators. The Arbitrators in their award observed in Para 4.58 that in the Tribunal's view none of these alleged Counterclaims was admissible and majority of these claims stood settled. It was also observed while discussing each of the counter claim that counter-claim Nos. 2,3,4,5,6,7,8,9 & 10 were already covered by the minutes of meeting dated 6th/7th April, 2000 and finally in paragraphs 4.60 & 4.61 it was observed as under:

"4.60 As will be seen, the majority of the Counterclaims is said to be caught by the settlement agreement of the 6th/7th April, 2000 which was the subject of the exchange of correspondence on the 5th May 2000 and the 10th May 2000 to which reference has already been made above. On the fact of it the MOM taken in conjunction with the subsequent correspondence clearly show a binding agreement for good consideration whereby a number of claims were compromised. Thus, paragraphs 2,3 and 4 reflect a discussion about critical components and operational guarantee. Those matters were settled as appears from paragraph 5.

7. The Tribunal also held that certain objections were taken with regard to the agreement not being binding which was disposed of by the Tribunal as it had no merits because the agreement was voluntarily made between the parties and it was not under duress or by deception. In paragraph 4.64 of the Award it was concluded that so far as counter claim Nos.2,3,4,5,6,8,9 & 10 were concerned, they were caught by settlement. So far as counterclaim No.7 was concerned, it was mere reservation of right and so far as counterclaim No. 1 was concerned, it was the opinion of the Tribunal that five purchase orders were confirmed and supplied and therefore, no dispute could arise. Accordingly, the Tribunal held that in view of settlement of issues in the minutes of meeting dated 6th/7th April, 2000 it was unnecessary for the Tribunal to consider any additional defence to the counterclaim and it was held that they were not admissible and not capable of being included in that reference to arbitration. Accordingly, this partial award was passed by the Tribunal. The Tribunal considered all these counterclaims and recoded the aforesaid finding.

8. Now, the only question that remains to be decided in the present case is whether against the order of partial award an appeal is maintainable directly under Section 37 of the Act or not. We have considered the submissions of learned counsel for the appellant and after going through the counterclaim and the partial award, we are of opinion that no question of jurisdiction arises in the matter so as to enable the appellant to file a direct appeal under Section 37 of the Act before the High Court. As already mentioned above, an appeal under sub-section (2) of Section 37 only lies if there is an order passed under Section 16(2) & (3) of the Act. Section 16(2) & (3) deals with the exercise of jurisdiction. The plea of jurisdiction was not taken by the appellant. It was taken by the respondent in order to meet their counterclaim. But it was not in the context of the fact that the Tribunal had no jurisdiction, it was in the context that this question of counterclaim was no more open to be decided for the simple reason that all the issues which had been raised in counterclaim Nos. 1 to 10 had already been settled in the minutes of meeting dated 6th/7th April, 2000 and it was recorded that no other issues to be resolved in 1st and 3rd contracts. Therefore, we fail to understand how the question of jurisdiction was involved in the matter. In fact it was in the context of the fact that the entire counterclaims have already been satisfied and settled in the meeting that it was concluded that no further issues remained to be settled. In this context, the counterclaims filed by the appellant was opposed. If any grievance was there, that should have been by the respondent and not by the appellant. It is only the finding of fact recorded by the Tribunal after considering the counterclaim vis-a-vis the minutes of the meeting dated 6th/7th April, 2000. Therefore, there was no question of jurisdiction involved in the matter so as to enable the appellant to approach the High Court directly. The High Court has also examined this matter and clearly observed in its order in paragraph 9 as follows: