JAYESH H PANDYA Vs. SUBHTEX INDIA LIMITED

JUDGEMENT

(1.) The relief which the petitioners seek in an Arbitration Petition invoking Section 14 of the Arbitration and Conciliation Act, 1996, is in the following terms:

(2.) The petitioners and the second respondent are partners of a partnership firm by the name of Hetali Construction Company. The first respondent is a Company incorporated under the Companies Act, 1956 and is the claimant in the arbitral proceedings before the Hon ble Mr. Justice S.N. Variava, former Judge of the Supreme Court. The petitioners are party respondents to the arbitral proceedings. The third respondent to the present proceedings is the Court Receiver who has been appointed as Receiver of the properties and assets of the partnership.

(3.) Placing reliance on a document of 28th April, 2000 as constituting an arbitration agreement between the first respondent and the partnership, the first respondent invoked arbitration in April, 2003. The first respondent instituted an application under Section 11 of the Act. By an order dated 14th November, 2003, a learned Single Judge of this Court appointed Mr. Justice V.D. Tulzapurkar, former Judge of the Supreme Court as sole arbitrator, recording that without prejudice to their rights and contentions, learned Counsel for the parties had unanimously agreed to the appointment. While disposing of the application under Section 11, the learned Single Judge held that the second and third respondents before the Court in those proceedings would be entitled to challenge the jurisdiction of the Arbitrator and the validity and effect of the arbitration agreement. A Writ Petition under Article 226 of the Constitution filed by the petitioners to challenge the order of the learned Single Judge was dismissed by a judgment and order dated 20th January, 2004 of the Division Bench. The Division Bench observed that the petitioner had an adequate remedy under Section 16 of raising all contentious issues relating to the existence of the arbitration agreement and the constitution of the Arbitral Tribunal, before the Tribunal. The Division Bench consequently held that no fit case was made out for the invocation of the writ jurisdiction under Article 226 of the Constitution.