M/s. Govind Agrawal vs M.P. Madhya Kshetra Vidyut Vitaran Co. Ltd. and others

Sujoy Paul, J.—This is second visit of the applicant to this Court for appointment of arbitrator. Earlier the applicant approached this Court by filing Arbitration Case No. 1/07. This Court by order dated 14.3.2008 directed the President of Institute of Engineers (India) to appoint the third presiding arbitrator. Thereafter, MCC No. 744/08 was filed by the employer/respondent to recall the said order. This Court by order dated 23.1.2009 recalled the said order and gave liberty to the applicant to approach Madhyastham Adhikaran (for short the ''Tribunal'') within a stipulated time. In turn, the applicant approached the Tribunal and matter was registered as Case No. 14/09. However, the Tribunal by order dated 3.1.2011 held that Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 is not applicable. This is opined in view of judgment of Supreme Court delivered in Civil Appeal No. 3746/2005 Va Tech Escher Wyass Flovel Ltd. Vs. M.P.S.E. Board and Another, . Shri Harish Dixit, learned counsel for the applicant submits that this application is maintainable in view of section 15 of Arbitration and Conciliation Act, 1996 (for short, the "Arbitration Act"). By placing reliance on sections 15 and 11(6)(c) of the Arbitration Act, learned counsel submits that the remedy lies before this Court only. He submits that pursuant to liberty given by this Court the Tribunal/Arbitrator has declined to entertain the application and, therefore, the applicant has a right to maintain this application under the Arbitration Act and seek appointment of an arbitrator. By placing reliance on para 5.8 of his application, he submits that contract, in fact, stood cancelled and, therefore, remedy is before this Court only.

Per Contra, Shri Vivek Jain, learned counsel for the respondents submits that in view of finding of this Court in the MCC aforesaid that Arbitration Act is not applicable, this application is not tenable. He relied on various judgments to submit that this application is not maintainable.

I have heard learned counsel for the parties and perused the record.

The objection raised by the other side goes to the root of the matter. Therefore, before dealing with other aspects, I deem it proper to deal with the question of tenability of this application.

It is apt to quote the finding of this Court given between the same parties in MCC No. 744/08, which reads as under:-

After hearing the learned counsel for the parties, I find that by virtue of the aforesaid Notification dated 04.11.96, the work-contract between the parties will be governed by the definition of "work-contract" between Public Undertaking and the Contractor. Hence, in view of the Full Bench decision of this Court in the case of Shri Shankarnarayana Construction Company (supra), the provisions of the Arbitration and Conciliation Act, 1996 are not applicable. Hence, I recall the said order and grant liberty to the petitioners to approach the Madhyastham Adhikaran and if they approach within two months from today then the Tribunal shall not dismiss the case of the petitioners on the ground of delay and decide it in accordance with law after following procedure laid down u/s 7 of the said Adhiniyam, 1983.

A bare perusal of aforesaid finding makes it clear like noon day that this Court had opined that the provisions of Arbitration Act are not at all applicable. This order, in absence of challenge, has attained a finality. Thus, the basic question is whether in view of this finding the present application is maintainable ?

In my opinion, the propriety and judicial discipline does not permit me to go beyond and behind this order. The order passed by this Court in MCC No. 744/08 is binding on me. Accordingly, in view of finding that Arbitration Act is not applicable, the present application preferred u/s 11(6) of the Arbitration Act cannot be entertained. In view of this, I do not deem it necessary to deal with other arguments of learned counsel for the parties. For the reasons stated above, the present application is not maintainable and is hereby dismissed. However, it is made clear that this Court has not expressed any opinion on the merits of the case and it will remain open to the applicant to file appropriate application/petition to challenge the order passed by the Tribunal. No costs.