ALTAF HUSSAIN BEG Vs. SHAKEEL-UR-REHMAN BHAT

JUDGEMENT

(1.) This Writ Petition, purportedly, has its genesis in the Order dated 17th of September, 2021 passed by this Court in Arbitration Petition bearing No. 04/2021 filed by the Respondent No.1 herein under Sec. 11(6) of the Arbitration and Conciliation Act, 1996 (for short "the Act of 1996') seeking appointment of an Arbitrator to resolve the disputes arising between the parties in connection with the Parent Partnership Deed dated

(2.) nd of February, 2010 which contained an Arbitration Clause and the subsequent Partnership Deed dated 7th of June, 2014 providing therein that the disputes between the parties would be governed by the terms and conditions of the Parent Partnership Deed. The Court, in terms of the aforesaid Order, with the consent of the parties, appointed Hon'ble Mr Justice (Retd.) M. K. Hanjura, House No. 307, Lane No.4, Anand Vihar, Bohri, Talab Tillu, Jammu as the sole Arbitrator to make the award in accordance with the provisions of the Act. Pursuant to the aforesaid Order, the parties appeared before the Sole Arbitrator on 9th of October, 2021 and a mechanism/ procedure was devised with regard to the conduct of proceedings after hearing the parties. Thereafter, the proceedings were conducted by the Sole Arbitrator and, in terms of Order dated 15th of April, 2022, the matter was fixed for recording the statement of the Claimant/ Respondent No.1 herein. On 20th of April, 2022, the matter was again taken up on the face of a text message dated 16th of April, 2022 received by the Sole Arbitrator from the learned Counsel for the Respondent/ Petitioner herein via WhatsApp seeking framing of draft issues and the Sole Arbitrator, however, rejected the said WhatsApp message/ communication by observing that the framing of issues is not an essential part of the mechanism and procedure to be expanded in an arbitration proceeding. Thereafter, an application was filed on behalf of the Respondent/ Petitioner herein seeking review of aforesaid orders dated 15th of April, 2022 and 20th of April, 2022. The Sole Arbitrator, in terms of Order dated 12th of May, 2022, rejected the application so filed by the Respondent/ Petitioner herein and fixed the matter for recording the statement of the Claimant/ Respondent No.1 herein. It is these Orders dated 15th of April, 2022; 20th of April, 2020; and 12th of May, 2022 passed by the Sole Arbitrator that have been put to challenge by the Respondent/ Petitioner herein through the medium of the Petition in hand filed under Articles 226 and 227 of the Constitution. 2. When this matter was taken up for consideration, Mr M. A. Qayoom, the learned Counsel appearing on behalf of the Claimant/ Respondent No.1 herein, who is on Caveat, raised a preliminary objection with regard to the maintainability of the present Petition filed under Article 226 read with Article 227 of the Constitution. It is submitted that there is no scope for challenging the interim orders passed by the Sole Arbitrator inasmuch as the same are only a part of the proceedings with respect to conduct of the procedure being adopted in the process of arbitration and that the scheme of law does not provide for such a challenge. It is contended that the object of the Act of 1996 is that of minimizing judicial intervention and this important object is always required to be kept at the forefront as and when a Writ Petition is filed under Article 226/227 against the proceedings made under the Act of 1996. It is also argued by the learned Counsel that the impugned orders of the Sole Arbitrator, being interim in nature, are not appealable under Sec. 37 of the Act of 1996 and that the Petitioner/ the aggrieved party can project his grievance against the award or any in between order that might be passed by the Arbitrator only after the award is finally passed. While strengthening his argument, Mr Qayoom has referred to and relied upon the mandate of the Constitutional Bench Judgment passed by the Hon'ble Supreme Court in case titled "SBP & C. v. Patel Engineering Ltd. & Anr., (2005) 8 Supreme Court Cases 618'.

(3.) Mr Z. A. Qurashi, the learned Senior Counsel, appearing on behalf of the Petitioner herein, submitted that there is no scope for the Petitioner herein to file any appeal under Sec. 37 of the Act as against the impugned interim orders passed by the Sole Arbitrator and, therefore, the Petitioner has been compelled to file the instant Petition before this Court. It is submitted that the approach adopted by the Sole Arbitrator in initially allowing the parties to submit the draft issues and, subsequent thereto, disallowing the framing of issues on the claim and counter claim of the parties violates the legal rights of the Petitioner. It is further submitted that the prejudice caused to the Petitioner in not framing the issues already submitted cannot be compensated or reversed in the event the award is passed against the Petitioner. It is pleaded that the Judgment passed by the Supreme Court, as referred to and relied upon by Mr Qayoom, does not bar the Petitioner from filing of the Writ Petition under Article 226/227 of the Constitution inasmuch the set of facts and the orders challenged, being different, cannot form the basis for declining to entertain the Writ Petition. It is contended that the aforesaid Judgment, in fact, supports the case of the Petitioner because the Supreme Court has made scope for filing of Writ Petition under Article 227 challenging the impugned orders passed by the Arbitral Tribunal/ Sole Arbitrator. Mr Qurashi argues that there is no remedy available under the provisions of the Act of 1996 for challenging the impugned interim orders passed by the Sole Arbitrator/ Arbitral Tribunal. Elaborating further, the learned Senior Counsel submitted that, in terms of the Order dated 22nd of January, 2022, the Sole Arbitrator, while granting ten (10) days' time for filing response, allowed the parties to exchange the draft issues and send them to the Tribunal within six weeks, but subsequently, in terms of Order dated 20th of April, 2022, the learned Sole Arbitrator has held that the framing of issues is not an essential part in the arbitration proceedings. It is submitted that the learned Arbitrator, while taking such view, has referred to the orders earlier passed by it as well as the Judgment of the Supreme Court rendered in Civil Appeal No. 5139 of 2009 titled "Fiza Developers and Inter Trade v. Amci (I) Pvt. Ltd. & Anr.', (2009) 17 SCC 796', which Judgment is not applicable to the issue involved in the present case. It is also contended that the Judgments applied by the Sole Arbitrator in rejecting the claim of the Respondent/ Petitioner herein for framing of issues deal with proceedings under Sec. 34 of the Act of 1996. In the above context, the learned Senior Counsel has made an endeavour and all possible effort to demonstrate that the procedure adopted by the Sole Arbitrator in proceeding to decide the arbitral reference without framing the issues does deprive the Petitioner of substantiating his stand before the Sole Arbitrator in its true and correct perspective.