PARADEEP PHOSPHATES LTD Vs. PARADEEP PORT TRUST

JUDGEMENT

(1.) THIS writ appeal has been filed against the order dated 1-8-2005 passed by a learned single Judge of this court in W. P. (C) No. 8673/2004.

(2.) THE brief facts, as narrated in the appeal memo, are as follows :-On 3-8-1985, when the present appellant-Paradeep Phosphates Ltd. (PPL) was a public Sector Undertaking, it entered into an agreement with the respondent-Paradeep port Trust (PPT), a statutory authority under the Central Government, with regard to berthing facilities in the Paradeep Port, vide annexure-1. Clause 20 of the said agreement provided for reference of disputes arising thereunder to arbitration. The Central Government constituted a high Power Committee in terms of the judgment of the apex Court rendered in Oil and natural Gas Commission v. Collector of central Excise, reported in 1994 (70) ELT 45, wherein the Court while clarifying its earlier order dated 11-10-1991 directed the union of India to set up a High Power committee for the purpose of ensuring that disputes/controversies "between a Ministry and a Ministry of the Government of India, a ministry and a Public Sector Undertaking of the Government of India and between public Sector Undertakings themselves are resolved by recourse to the High Power committee and that time consuming and expensive litigation is avoided". Disputes arose between the PPL and PPT and the High power Committee so constituted in terms of the aforesaid judgment of the Apex Court referred the same to arbitration. Despite the subsisting arbitration clause in the agreement dated 3-8-1985 (Annexure-1), a fresh agreement was executed between the parties on 10-8-2001, vide Annexure-4, stipulating, inter alia, that (1) the Arbitration Act, 1940 shall not be applicable and (2) the award pronounced by the sole Arbitrator could be appealed before the Law Secretary, department of Legal Affairs, Ministry of Law and Justice, Government of India. On 19-9-2001, the sole Arbitrator, Sri N. C. Jain, entered into the reference. During pendency of the said arbitration proceedings, the Government ef India vide Purchase agreement dated 28-2-2002 (Annexure-5), divested its major shareholdings in the PPL to a private enterpreneur whereafter the PPL became a private company. The sole arbitrator, Sri N. C. Jain, passed the award on 27-12-2002, vide Annexure-7. According to the appellant-PPL, the respondent-PPT instead of challenging the arbitral award dated 27-12-2002 in an appropriate Court in accordance with Section 34 of the Arbitration and Conciliation Act, 1996, purported to file an appeal in february, 2003 before the Additional Secretary, department of Legal Affairs, Ministry of Law and Justice, Government of India. The PPL filed its counter to the said appeal raising various questions including the question of maintainability of the appeal and the jurisdiction of the Appellate Authority to entertain such appeal. As indicated in the memo of writ appeal, though both the parties appeared through their respective Advocates, the Appellate Authority by order dated 16-7-2003 debarred them to take assistance of the advocates. The PPL challenged the aforesaid order before the Delhi High Court in civil Writ Petition No. 5219/2003 and prayed for quashing the proceedings pending before the said Appellate Authority. The PPL filed Execution Case No. 3/2003 before the learned District Judge, Cuttack, but the same was dismissed by the order dated 30-4-2004 in Annexure-16. Aggrieved by the aforesaid order of the Executing court, the appellant-PPL filed a writ petition being W. P. (C) No. 8673/2004 in this court with a prayer to quash and set aside the said order dated 30-4-2004 and direct the Executing Court to dispose of the execution Case in accordance with law. A learned single Judge of this Court heard and disposed of the aforesaid W. P. (C) No. 8673/ 2004 by order dated 1-8-2005, the material part of which is extracted hereunder :-

(3.) THE question before this Court is whether the decision of Sri N. C. Jain, the sole Arbitrator, is an award under the provisions of the Arbitration and Conciliation act and the same is final on executable decree, as it has not been challenged by the ppt under Section 34 of the Arbitration and conciliation Act.