SANJEEV SARIN Vs. RITA WADHWA

JUDGEMENT

(1.) By this application under order 47 Rule 1 read with Section 151 of the Code of Civil Procedure, 1908, petitioners-applicants are seeking review of the order dated 20/10/2000. Facts in brief are: the respondent No.1 is real sister of the petitioners. After the death of their mother, petitioners filed an application u/s. 8,11,15(1)(a) of the Arbitration and Conciliation Act, 1996 (for short, the Act) praying for appointment of a retired Judge of this court as an Arbitrator to adjudicate the dispute regarding division of the estate left behind by their mother. The petition was based on a jointly signed letter by the petitioners and the respondent addressed to S/Shri Surender Kumar of Jullundhar and Arun Kumar of Amritsar, requesting them to act as arbitrators for division of all movable and immovable assets, left behind by their mother in three equal proportions and settlement of allied matters. Neither the "original arbitration agreement" nor "duly certified copy thereof was filed, as required by sub-section (2) of Section 8 of the Act. Only typed copy of the letter attested by the lawyer was filed.

(2.) The respondents in their written reply denied the arbitration agreement. As the existence of the arbitration agreement itself was denied, by order dated 20/10/2000 issues were framed and parties were directed to lead evidence by way of affidavits. It may be mentioned here that none of the parties had cited any case law on the subject, on that date. This procedure was followed as per the law laid down by the Supreme Court in Wellington Associates Ltd. Vs. Kirit Mehta. (2000) 4 SCC 272-wherein, referring to its earlier decisions, including Ador Samia Pvt. Ltd. Vs. Peekay Holdings Ltd. & Ors.. (1999) 8 SCC 572. it was held:

(3.) The petitioners are now seeking review of the said order on the ground that new and important material, which could not be brought to the notice of the court despite exercise of due diligence and that there is an error apparent on the face of the record. Learned counsel for the petitioners argued that under Section 11(6) of the Act, the Chief Justice or his designate acts in his administrative capacity and he does not exercise any judicial function and he has no trapping of judicial authority. Section 16 of the Act excludes jurisdiction of the Chief Justice or of his designate to adjudicate the question of existence of the Arbitration Clause or existence of Arbitration Agreement, that may be raised by the respondent. It primarily falls in the domain of the arbitrator to determine the question of its jurisdiction, if the same is raised. In support of his submission, reliance was placed on the following decisions of the Supreme Court: (1) Nimet Resources Inc. & Anr. v. Essar Steels Ltd.. JT 2000. (Supp.1) SC 95, (decided on 27/9/2000); (2) Konkan Railway Corporation Ltd. and anoother v. Rani Construction Pvt. Ltd. (2000) 8 SCC 159 (decided on 19/10/2000); and (3) Malaysian Airlines Systems Bhd (II) v . M/s.STIC Travels (P) Ltd., 2000(7) SCALE 724 (decided on 30/11/2000)