NIRMA LIMITED Vs. LURGI ENERGIE UND ENTSORGUNG GMBH

JUDGEMENT

(1.) This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') read with Section 96 of the Code of Civil Procedure is preferred from the judgment and order of the learned District Judge, Bhavnagar in Civil Miscellaneous Application No.46 of 2002 filed by the appellant herein for setting aside the "First Partial Award" dated 8.4.2002 of the International Court of Arbitration of the International Chamber of Commerce (ICC) in ICC Arbitration Case No.11396/TE between the appellant and the respondent No.1 herein. The other respondents herein are the members of the Arbitral Tribunal. For the sake of convenience, the appellant (original petitioner) is described hereinafter as "NIRMA" and the respondent No.1 is described as "LURGI". The impugned judgment rejecting the prayer to set aside the award held the application therefor to be not maintainable on the ground that the impugned arbitral award only refuses to accept the plea of jurisdiction raised by NIRMA and such decision of the arbitral tribunal could not be said to be an interim or partial award for the purpose of Section 34 of the Act.

(2.) The relevant facts, in brief, are that, on 1.9.1997, NIRMA entered into "Know-how and Supervision Agreement" with LURGI (Lentjes Energitechnik GmbH of Germany) which, inter alia, contained the clauses as under:

(3.) As seen earlier, the challenge to the above First Partial Award under Section 34 of the Act was turned down only on the ground that that award was in essence a decision on the plea that the arbitral tribunal did not have jurisdiction or was exceeding the scope of its authority and the scheme of the Act did not permit challenge to such a decision where the arbitral tribunal had not accepted the plea. Thus, the challenge to jurisdiction of the arbitral tribunal was not examined on merits and the contentions of the parties in the present appeal were also, therefore, restricted to maintainability of the application under Section 34 of the Act.