MOHD. HUSSAIN KHAN Vs. MOHD. IMTIYAZ AHMED

JUDGEMENT

(1.) These civil revision petitions arise out of common order, dated 18.11.2015, passed by the sole g Arbitrator in Arbitration Application No.83 of 2009. I have heard Sri R. Sameer Ahmed. learned counsel for the petitioner, and Smt. Manjari S. Ganu, learned counsel for the respondent.

(2.) An arbitration dispute was pending before an Honourable retired Judge of this Court, wherein the petitioner is respondent No. 1. After the evidence of PW. 1 was closed, the petitioner has tiled two interlocutory applications, one for re-calling PW.l and another for receiving additional documents. By a common order, dated 18.11.2015, the Arbitrator has rejected the said applications. Questioning the said common order, the petitioner has filed these civil revision petitions. When these civil revision petitions were taken up for admission and hearing, an earlier Division Bench has felt that the revision petitions may not be maintainable under Art. 227 of the Constitution of India. Therefore, the case was being adjourned from time to time to enable the learned counsel to argue on this aspect. Today, we have heard the learned counsel who argued that the bar under Sec. 5 of the Arbitration and Conciliation Act, 1996 (for short the 1996 Act), to question the orders passed in the IAs which fall under Part-I of the 1996 Act may not apply to the proceedings under Art. 227 of the Constitution in view of the non obstinate clause contained in Sec. 5 of the 1996 Act. According to him, the non obstinate clause in Sec. 5 of the 1996 Act cannot override Art. 227 of the Constitution and therefore this Court has every jurisdiction to interfere with (he order passed by the Arbitrator. Though this argument looks somewhat attractive examined superficially, on a deeper consideration, we find no merit therein. Indeed, this aspect is no longer res integra in view of the judgment of the Supreme Court in M/s. S.B.P. & Co. Vs. M/ s. Patel Engineering Ltd., and another (AIR 2006 SC 450) which is placed before us by Smt. Manjari S. Ganu, learned counsel for the respondent. Paragraphs-44 and 45 of the judgment are apt to be re-produced hereunder: It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, be capable of being challenged under Art. 226 or 227 of the Constitution of India. We see no warrant for such an approach. Sec. 37 makes certain orders of the arbitral tribunal appealable. Under Sec. 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Sec. 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Sec. 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Art. 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible. The object of minimising judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Art. 227 of the Constitution of India or under Art. 226 of the Constitution of India against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage. (Emphasis added)

(3.) From the above re-produced judgment, it is very clear that the Supreme Court has disapproved the practise of some of the High Courts entertaining writ petitions or revision petitions under Art. 226 or Article 227 of the Constitution of India during the pendency of the arbitration proceedings and termed such interference as contrary to the scheme underlying the 1996 Act.