Kurup Engineering Co. Pvt. Ltd. vs Bharat Heavy Electricals Ltd. and Others

Markandeya Katju, C.J.—This writ petition has been filed against an order of the learned single Judge, who was designated by the Hon''ble Chief Justice, u/s 11(6) of the Arbitration & Conciliation Act, 1996 (hereafter referred to as ''the Act'').

It has been held by a 7 Judge Bench of the Supreme Court in S.B.P. and Co. Vs. Patel Engineering Ltd. and Another, , that an order u/s 11(6) of the Act appointing or refusing to appoint an arbitrator is a judicial order and not an administrative order.

The learned counsel for the petitioner has invited our attention to para 46(x) of the majority decision which states:-

Since all were guided by the decision of this Court in M/s. Konkan Railway Corpn. Ltd. and Another Vs. M/s. Rani Construction Pvt. Ltd., and orders u/s 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or arbitral tribunals thus far made, are to be treated as valid, all objections being left to be decided u/s 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications u/s 11(6) of the Act.

The learned counsel for the petitioner laid emphasis on the words "As and from this date, the position as adopted in this judgment will govern even pending applications u/s 11(6) of the Act" and submitted that a perusal of the above observation of the Supreme Court indicates that the Supreme Court was of the view that prior to the date of the aforesaid decision, orders passed u/s 11(6) of the Act appointing or refusing to appoint arbitrators, can be challenged by way of a writ petition under Article 226 of the Constitution of India. We do not agree.

It may be noted that the ratio of the aforesaid judgment of the Supreme Court was that an order u/s 11(6) of the Act is a judicial order and not an administrative order. Surely it cannot be contended that an order u/s 11(6) of the Act, if passed before the date of decision of the Supreme Court was an administrative order, and an order u/s 11(6) of the Act made after the date of the aforesaid judgment would become a judicial order. In our opinion, the nature of an order made under the Act can surely not change. It was always a judicial order since the Supreme Court has held that it was a judicial order. In our opinion, the orders passed u/s 11(6) of the Act before the aforesaid judgment of the Supreme Court are also judicial orders.

It is well settled that judicial orders of the High Court cannot be challenged under Article 226 of the Constitution before the High Court itself, but can only be challenged before the Supreme Court under Article 136 of the Constitution.

The learned counsel for the petitioner submitted that an order of the learned single Judge u/s 11(6) of the Act is appealable before a Division Bench of the High Court by filing an appeal under Clause X of the Letters Patent or Section 10 of the Delhi High Court Act. We are afraid that we cannot accept this submission since it has been held in para 46(vii) of the majority decision of the Supreme Court in the aforesaid case:-

Since an order passed by the Chief Justice of the High Court or by the designated judge of that court is a judicial order, an appeal will lie against that order only under Article 136 of the Constitution of India to the Supreme Court.

Thus, the aforesaid observation of the Supreme Court clearly shows that an appeal will lie against an order u/s 11(6) of the Act only to the Supreme Court under Article 136 of the Constitution.

In view of the above discussion, there is no force in this petition. It is dismissed.

It is of course open to the petitioner to approach the Supreme Court under Article 136 of the Constitution. If there is delay in filing an appeal under Article 136 of the Constitution, then the same can only be condoned by the Supreme Court and not by us.