SRI HANUMAN TRUST Vs. INDIAN COMPRESSOR LIMITED

JUDGEMENT

(1.) This is an arbitration petition under sub- section (6) of Section 11 of the Arbitration and Conciliation Act for appointment of arbitrator. According to the petitioner, a contract was executed between the petitioner and the respondent at Delhi for leasing out of eight Hydraulic Compressors already installed at various sites in Delhi. The agreement admittedly had an arbitration clause. Since there arose a dispute between the parties, notices were given to the respondent. As the respondent failed to comply with the notice, the petitioner has filed the present arbitration petition, before this Court for appointment of an arbitrator.

(2.) Counter affidavit has been filed on behalf of the respondent though belatedly. It raises objection to the maintainability of the arbitration petition on various grounds, primarily on ground of jurisdiction. In addition to the point of jurisdiction, it has been apprised by the learned counsel for the respondent that regarding the same subject matter, the respondent had filed a suit before the court at Delhi, which is pending before the Saket Court, New Delhi, in which application was moved by the petitioner for referring the matter to the Arbitrator under Section 8 of the Arbitration and Conciliation Act , 1996, which has been dismissed, vide order dated 27.05.2017.

(3.) Be that as it may, the fact remains that the proceedings under Section 8 of the Arbitration and Conciliation Act are independent to the proceedings under Section 11 (6) of the Act. Moreover, application under Section 11 (6) of the Act was filed prior in time before this Court than the suit before the courts in Delhi. All the same, after the Constitution Bench decision of the Hon'ble Apex Court in the case of S.B.P. & Co. v. Patel Engineering Ltd . reported in (2005) 8SCC 618, appointment of an arbitrator is a judicial order and one of the aspects which has to be looked into by this Court before appointment of an arbitrator is the very jurisdiction of the Court.