AI Structured Summary
Not yet generated for this judgment
Judgment
Shiv Kumar Sharma, J.—These three revision petitions were preferred by Union of India challenging the order dated August 14, 2002 of the learned District Judge Ajmer passed on the application u/s 8 of Arbitration Act, 1940 (for short ''Old Act'') whereby Mr. R.J. Bhakru was appointed to act as Arbitrator and adjudicate the dispute arising out of the contract awarded to respondent for constructing Sudha Mishra) vide order dated April 12, 2004 held that District Judge Ajmer had no jurisdiction to appoint Arbitrator in view of Section 11 of Arbitration and Conciliation Act, 1996 (for short ''New Act''). However, the Supreme Court set aside the aforesaid order in Civil Appeal No. 1430/2008 decided on March 3, 2006 and remitted the matter back for fresh consideration.
I have heard rival submissions.
Before proceeding further, it may be noticed that the New Act which came into force with effect from August 22, 1996 repealed all old Acts related to Arbitration. Section 85 of New Act, which relates to repeal and savings, reads as under:
Repeal and savings
(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937) the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2) Notwithstanding such repeal (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;
(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.
A look at aforesaid section demonstrates that although after commencement of New Act the Old Act stood repealed, the provisions contained in Old Act shall notwithstanding apply to arbitral proceedings which commenced before New Act came into force.
Undeniably in the instant cases, the dispute between the parties relate to the contract which was awarded to respondent on November 11, 1986 and first Arbitrator was appointed by the Court on October 20, 1989, who tendered his resignation and thereafter other Arbitrators were appointed.
The contention of the petitioners before District Judge was that since one Mr. Sinhal was appointed to act as Arbitrator, the application u/s 8 of the Old Act could not have been entertained. This submission of the petitioners was considered at length by the District Judge in para No. 5 of the impugned order and it was held that since no material was placed on record by Union of India to show that any Arbitrator was ever appointed, the argument had no legs to stand. Learned District Judge thereafter in exercise of the powers u/s 8 of the Old Act appointed Mr. R.J. Bhakru to act as Arbitrator vide order dated August 14, 2002. The order was passed after having considered all the submissions advanced on behalf of Union of India. Condition No. 25 of the
A plain reading of Section 8 of the Old Act demonstrates that District Court had power to appoint Arbitrator after it had been moved by the parties to reference. I see no jurisdictional error in the impugned judgment of learned District Judge.
Under the scheme of Old Act, an appeal is provided u/s 39 of Old Act on the following grounds:
(i) superseding an arbitration;
(ii) on an award stated in the form of special case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration agreement;
(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;
(vi) setting aside or refusing to set aside an award.
Since the order of appointment of Arbitrator by District Judge u/s 8 was not appealable, the revision petitions u/s 115 CPC were filed by Union of India. Although maintainability of these petitions could not be questioned, they could be assailed on merits. As already noticed the order passed by the learned District Judge was in accordance with law, no interference in these revision petitions is called for.