LexM/S. KONKAN RAILWAY CORPORATION LTD. AND ANR. ETC. ETC. versus M/S. RANI CONSTRUCTION PVT. LTD. ETC.
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A MIS. KONKAN RAILWAY CORPORATION LTD. AND ANR. ETC. ETC. v. MIS. RANI CONSTRUCTION PVT. LTD. ETC. OCTOBER 19, 2000 [M. JAGANNADHA RAO AND K.G. BALAKRISHNAN, JJ.] Arbitration and Conciliation Act, 1998 : Section 11. C Order passed under Section 1 I-Nature of-Whether judicial or administrative-Whether appeal under Article 136 can be filed against such an order-Held, the question is one arising almost constantly in a large number of cases in various High Courts-Held it is desirable that this court re-examines the matter-Direction that papers be placed before the Hon'ble D Chief Justice of India for passing appropriate orders-Law on this point in other countries discussed-Principle of 'Kompetenz-Kompetenz'. Konkan Railway Corporation Ltd. v. Mis. Mehul Construction Co., (2000) 6 SCALE 71; Sunderam Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479; Ador Samia Pvt. Ltd. v. Peekay Holdings Ltd. & Ors., [19991 8 E SCC 572; Inda-China Steam Navigation Co. Ltd. v. Jasjit Singh, AIR (1964) SC I 140: (1964) 6 SCR 594; Wellington Associates Ltd. v. Mr. Kirit Mehta, JT (2000) 4 SC 135; Nimet Resources Inc. & Anr. v. Essar Steels Ltd., ZT (2000) Suppl. 1 SC 95 and Mis. Datar Switchgears Ltd. v. Tata Finance Etd. & Anr., (Civil Appeal arising out of SLP (C) No. 13812 of 2000 decided by Supreme Court on 18.10.2000), referred to. F Caprodag v. Dame Bohin, (1995 Rev. Arb. 617); Comptek Telecom Inc. v. !VD Corpn. (I 995) (US Dist. Lexis I 1876); SMG Swedish Machine Group v. Swedish Machine Group Inc., (1991) (US Dist. Lexis 780); Azov Shipping Co. v. Baltic Shipping Co., (1999) I LL LR 68 and Hi-fert Pty. Ltd. v. G Kiukiang Maritime Carriers, Vol. XXIII-1998, Year Book of Commercial Arbitration of ICCA p. 606 at p. 612, referred to. 'Law and Practice of International Commercial Arbitration' by Alan Redferm and Martin Hunter (3rd Ed.) (1999) pp. 273-274; Fouchard, Gaillard Goldman on International Arbitration, (1999) pp. 407-413 and A Practical H Approach to Arbitration Law by Keren Tweeddale and Andrew Tweeddale 278 - KONKAN RAILWAYCORPN. LTD. v. RANI CONSTRUCTION PVT. LTD. (RAO, J.J 279 (1999) p.79, refered to. CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5880- 5889 of I 997. From the Judgement and Order dated 4.7.97. of the Bombay High Court A in M.C.A. Nos. 49-58 of 1997 B WITH Civil Appeal Nos. 713-14/99, 715/99, 716/99, 2037-2040/99, 204l/99, 2042- 2044/99, 4311/99, 4312/99, 4324/99, 4356/99, 7304/99, 7306-7309/99. Harish N. Salve, Ms. Suchitra A.Chitale and Atul Y. Chitale for the Appellants. P.P.Malhotra, K.V. Mohan, A.K. Srivastava, Ms. Anil Katiyar, Ms. Niranjana Singh, V.B. Sharya, P.B. Suresh and Vipin Nair for the Respondents. The following Order of the Court was delivered by : M. JAGANNADHA RAO, J. Learned Solicitor General of India Sri Harish Salve, appearing for the appellants, has submitted that the order dated 4.7.97 of the learned Chief Justice of the Bombay High Court, under section 11 of c D the Arbitration and Conciliation Act, 1996 on the preliminary issues is a E Judicial order and, on facts, is liable to be set aside under Article 136 of the Constitution of India. It is contended that, even if it is to be treated as administrative in nature, it is amenable to Article 136. The learned Chief Justice in his order dated 4.7.97 held that inasmuch F as the appellant-company failed to appoint Arbitrators as required under the arbitration clause, the appellants should be compelled to furnish a panel of names of arbitrators to the respondent-contractors and one name should be suggested by the appellants. The learned Chief Justice had also rejected the plea of the appellants that no reference be made as the matters were 'excepted matters' and held that the question whether the claims related to 'excepted G matters' or not was also to be decided by the arbitrators after recording evidence and verifying the facts. Learned Solicitor General contends that such an order of the Chief Justice deciding rights preliminary points cannot be characterised as an administrative order. Appellant is confronted with the three Judge Bench in Konkan Railway H 280 SUPREME COURT REPORTS (2000) SUPP. 4 S.C.R. A Corporation ltd. v. Mis Mehul Construction Co., (2000) 6 SCALE 71 which has held that no appeal is maintainable under Article 136 against such an order passed by the Chief Justice directing appointment of arbitrators under section 11 inasmuch as such orders
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