LexM/S MAYAVTI TRADING PVT. LTD. versus PRADYUAT DEB BURMAN
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A B C D E F G H 123 M/S MAYAVTI TRADING PVT. LTD. v. PRADYUAT DEB BURMAN (Civil Appeal No. 7023 of 2019) SEPTEMBER 05, 2019 [R. F. NARIMAN, R. SUBHASH REDDY AND SURYA KANT, JJ.] Arbitration and Conciliation Act, 1996 – Sub-section (6-A) to s.11 [Amendment Act, 2015] and s.11 [Amendment Act, 2019] – Effect of – Held: After the amendment Act of 2019, s.11(6A) has been omitted because appointment of arbitrators is to be done institutionally, in which case the Supreme Court or the High Court under the old statutory regime are no longer required to appoint arbitrators and consequently to determine whether an arbitration agreement exists. Arbitration and Conciliation Act, 1996 – Sub-section (6-A) to s.11 [Amendment Act, 2015] – Effect of – Held: s.11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment Duro Felguera, S.A. v. Gangavaram Port Limited (2017) 9 SCC 729 in paras 48 and 59. United India Insurance Company Limited v. Antique Art Exports Private Limited (2019) 5 SCC 362 – overruled. Duro Felguera, S.A. v. Gangavaram Port Limited, (2017) 9 SCC 729 : [2017] 10 SCR 285; SBP & Co. v. Patel Engineering Ltd. and Anr. (2005) 8 SCC 618 : [2005] 4 Suppl. SCR 688; ONGC Mangalore Petrochemicals Limited v. ANS Constructions Limited and another, (2018) 3 SCC 373 : [2018] 2 SCR 598; Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd., (2019) SCC OnLine SC 515 – referred to. [2019] 12 S.C.R. 123 123 A B C D E F G H 124 SUPREME COURT REPORTS [2019] 12 S.C.R. Case Law Reference (2019) 5 SCC 362 overruled Para 4 [2017] 10 SCR 285 referred to Para 4 [2005] 4 Suppl. SCR 688 referred to Para 7 [2018] 2 SCR 598 referred to Para 8 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7023 of 2019 From the Judgment and Order dated 12.03.2019 of the High Court at Calcutta in A.P. No. 565 of 2018. Mukul Rohatgi, Sr. Adv., Utpal Majumdar, Ms. Ranjeeta Rohatgi, Ms. Samten Doma, Abhishek Thakral, Sagnik Majumdar, Advs. for the Appellant. Shyam Divan, Sr. Adv., Ms. Sonia Dube, Ms. Labanyasree Sinha, S. Chakraborty, Ms. Kanchan Yadav, Ms. Surbhi Anand, Bhav Ratan (for M/s. Victor Moses & Associates), Advs. for the Respondent. The Judgment of the Court was delivered by R. F. NARIMAN, J. 1. Leave granted. 2. We have heard Mr. Mukul Rohatgi, learned Senior Advocate appearing for the appellant and Mr. Shyam Divan, learned Senior Advocate appearing for the respondent at considerable length. 3. On the facts of this case, we do not propose to interfere with the impugned decision of 12.03.2019 and, therefore, do not find it necessary to exercise our extraordinary jurisdiction under Article 136 of the Constitution of India. 4. Having said this, however, during the course of argument, a recent decision of this Court was pointed out, namely, United India Insurance Company Limited vs. Antique Art Exports Private Limited, (2019) 5 SCC 362. In this judgment, purportedly following Duro Felguera, S.A. vs. Gangavaram Port Limited, (2017) 9 SCC 729, this Court held: “20. The submission of the learned counsel for the respondent that after insertion of sub-section (6-A) to Section 11 of the A B C D E F G H 125 Amendment Act, 2015 the jurisdiction of this Court is denuded and the limited mandate of the Court is to examine the factum of existence of an arbitration and relied on the judgment in Duro Felguera, S.A. v. Gangavaram Port Ltd. [(2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] The exposition in this decision is a general observation about the effect of the amended provisions which came to be examined under reference to six arbitrable agreements (five agreements for works and one corporate guarantee) and each agreement contains a provision for arbitration and there was serious dispute between the parties in reference to constitution of Arbitral Tribunal whether there has to be Arbitral Tribunal pertaining to each agreement. In the facts and circumstances, this Court took note of sub-section (6-A) introduced by the Amendment Act, 2015 to Section 11 of the Act and in that context observed that the preliminary disputes are to be examined by the arbitrator and are not for the Court to be examined within the limited scope available for appointment of arbitrator under Section 11(6) of the Act. Suffice it to say that appointment of an arbitrator is a judicial power and is not a mere administrative function leaving some degree of judicial int
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