LexHINDUSTAN COPPER LTD. versus MONARCH GOLD MINING CO. LTD.
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[2012] 9 S.C.R. 293 HINDUSTAN COPPER LTD. v. MONARCH GOLD MINING CO. LTD. (Civil Appeal No. 7449 of 2012) OCTOBER 11, 2012 [R.M. LODHA AND ANIL R. DAVE, JJ.] ARBITRATION AND CONCILIATION ACT, 1996: A B s. 11 (6) - Application for appointment of arbitrator - c Designate Judge holding that the request for appointment of arbitrator was proper, and then referring the matter to the Delegate of Chief Justice for appointment of arbitrator - Held: The procedure that is being followed by the High Court with regard to the consideration of the applications uls 11 is legally D impermissible - The piecemeal consideration of the application u/s 11 by the Designate Judge and another Designate Judge or the Chief Justice, as the case may be, is not contemplated bys. 11 - The function of the Chief Justice or Designate Judge in consideration of the application u/s 11 E is judicial and such application has to be dealt with in its entirety by either Chief Justice himself or the Designate Judge and not by both by making it a two-tier procedure - The distinction drawn by the High Court in Modi Korea Telecommunications Ltd. between the procedure for appointment of arbitrator and the actual appointment of the F arbitrator is not at all well founded. The procedure adopted by the Calcutta High Court in the applications uls 11 of the Arbitration and Conciliation Act, 1996, namely, the Designate Judge first G passed an order that the request for appointment of arbitrator was proper and then ordered that the application be referred to the Delegate of the Chief Justice for appointment of an arbitrator, was in issue in 293 H 294 SUPREME COURT REPORTS [2012] 9 S.C.R. A the instant appeals. In C.A. No. 7449 of 2012 the Court felt that the views of the Registrar General, Calcutta High Court were necessary as the issue involved was whether an application u/s. 11 (6) of the Act for appointment of an arbitrator cold be considered in piecemeal by two B Designate Judges. On behalf of the Registrar General of the High Court it was pleaded that it was permissible that the Designate Judge considered the general power of the court to determine whether the pre-conditions for the exercise of that power have been fulfilled leaving the c power of naming the arbitrator u/s 11 to the exclusive jurisdiction of the Chief Justice and this was in conformity with the Division Bench decision of the Calcutta High Court in Modi Korea Telecommunication's case. D Allowing the appeals in part, the Court HELD: 1.1 The majority in SBP & Co.* held that looking at the scheme of the Arbitration and Conciliation Act, 1996 as a whole and the object with which it was E enacted, it seemed proper to view the conferment of power on the chief justice as a conferment of judicial power to decide on the existence of the conditions justifying the constitution of an arbitral tribunal. It was also observed that the power had been conferred u/s F 11 (6) on the highest judicial authority in their capacities as Chief Justices to pass an order contemplated u/s 11 of the Act. [para 15] [306-F-G; 307-A] G H SBP & Co. v. Patel Engineering Ltd. and another 2005 (4) Suppl. SCR 688 = 2005 (8) SCC 618 - followed. Konkan Railway Corporation Limited & Ors. v. Mehul Construction Company 2000 (2) Suppl. SCR 563 = 2000 (7) SCC 201; and Konkan Railway Corporation Limited & Anr. v. Rani Construction (P) Ltd. 2002 (1) SCR 728 = 2002 (2) HINDUSTAN COPPER LTD. v. MONARCH GOLD 295 MINING CO. LTD. sec 388 - stood overruled. A 1.2 The exposition of law by a seven-Judge Bench of this Court in SBP & Co., leaves no manner of doubt that the procedure that is being followed by the Calcutta High Court with regard to the consideration of the 8 applications uls 11 of the 1996 Act is legally impermissible. The piecemeal consideration of the application uls 11 by the Designate Judge and another Designate Judge or the Chief Justice, as the case may be, is not contemplated by s. 11. The function of the Chief C Justice or Designate Judge in consideration of the application uls 11 is judicial and such application has to be dealt with in its entirety by either the Chief Justice himself or the Designate Judge and not by both by making it a two-tier procedure. The distinction drawn by the Division Bench of Calcutta High Court in Modi Korea D Telecommunications Ltd.* between the procedure for appointment of arbitrator and the actual appo
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