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1 - 5 of 5 (0.19 seconds)Union Of India vs M/S. Popular Builders, Calcutta on 17 October, 2000
On the aforesaid facts, learned Single Judge came to the conclusion that the
issue about termination having been gone into by the arbitrator, it was not
permissible for the CIT to take the plea about the non-arbitrability thereof.
Learned counsel for the CIT, however, contends that issue of arbitrability being
a matter of jurisdiction of the arbitrator, learned Single Judge was not correct
in concluding that the CIT could not take that plea and the Division Bench by
the impugned judgment rightly reversed the decision of the learned Single Judge.
Learned counsel relies upon the decision in the case of Union of India v.
Popular Builders, Calcutta [(2000) 8 SCC 1] by a three Judge Bench to which one
of us (G.B. Pattanaik, J) was a member in support of the contention that the
existence of an arbitrable dispute is a condition precedent for exercise of
power by the arbitrator. We have no quarrel with this proposition. In the
decision relied upon, on facts, it was found that the final bill that was
prepared by the appropriate authority was accepted by the contractor without any
protest and that the said question had been raised by the Government before the
arbitrator in respect of claim No.2. On these facts, the Court held that
insofar as claim No.2 is concerned, the same could not have been a matter of
reference of an arbitrable dispute and as such, the award to that extent must be
set aside. In fact, this decision is against the respondent inasmuch as in the
said case other claim items in respect whereof the Union of India had not taken
any objection on the same score as in respect of claim No.2, the Bench held that
it was not appropriate to allow the Government to raise that objection, so far
as other items of the claim are concerned and except to the extent of claim Item
No.2 the rest of the award was affirmed.
Steel Authority Of India Limited vs J.C. Budharaja, Government And Mining ... on 1 September, 1999
Reliance has also been placed on Steel Authority of India Ltd. v. J.C.
Budharaja, Government and Mining Contractor [(1999) 8 SCC 122]. That is,
however, a case of a speaking award where it was apparent from the award that
the arbitrator had awarded the amount for the items for which there was
prohibition in the contract and thereby he had travelled beyond his jurisdiction
and it is in that context that the Court reiterated that to find out whether the
arbitrator has travelled beyond his jurisdiction and beyond the terms of the
agreement between the parties, the agreement is required to be looked into.
This decision has no applicability to the present case.
U.P. Rajkiya Nirman Nigam Ltd vs Indure Pvt. Ltd. & Ors on 9 February, 1996
Lastly, reliance is placed on U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd.
& Ors. [(1996) 2 SCC 667]. This is again a decision by a three Judge Bench of
which one of us (G.B. Pattanaik, J.) was a member. The said decision arose out
of an application filed under Section 33 of the Arbitration Act pending the
arbitration proceedings for a declaration that there existed no arbitration
agreement between the parties on the basis of which dispute could be referred
for arbitration. The contention urged was that the arbitrator having been
appointed by the appellant, they could not seek a declaration under Section 33
of the Act. It was held that the arbitrator cannot clothe themselves with
jurisdiction to decide conclusively the arbitrability of the dispute and it is
for the Court to decide that question and, therefore, the appellant is not
estopped to file an application under Section 33 of the Act. This decision
again is of no assistance for deciding the present case. In the case in hand it
cannot be held that the arbitrator per se had no jurisdiction to decide the
issue of the validity of the termination of the contract. It depended upon the
factual matrix.
Section 30 in The Arbitration Act, 1940 [Entire Act]
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