Delhi Assam Roadways Corporation ... vs M/S. Indian Oil Corporation ...
2009 Latest Caselaw 17 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION




                                                            
                   ARBITRATION PETITION NO. 692 OF 2009




                                                           
    Delhi Assam Roadways Corporation Ltd.                     ... PETITIONER
           Vs.




                                             
    M/s. Indian Oil Corporation Limited.                      ... RESPONDENT
                               
                                      --------------
                              
    Mr. Atul G. Damle for Petitioner.
    Mr.  Harinder  Toor   with  Mr. Hemant  Prabhulkar  i/by     Jurisconsultus  for 
    Respondent.
                                      --------------
       
    



                                     CORAM  :  ANOOP V. MOHTA, J.

th DATE : 07 December, 2009.

    ORAL JUDGMENT

    1            Heard finally.





    2            The Petitioner has invoked Section 34 of the Arbitration and 

Conciliation Act, 1996 (for short, the Arbitration Act) thereby challenged

nd the Award dated 02 September, 2008 passed on an application under

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Section 16 of the Arbitration Act.

3 The operative par of the order is as under:

"The present application filed by the Respondents

u/s 16 of the Arbitration and Conciliation Act, 1996 is

allowed and the Claim of the Claimants stands

dismissed."

4 The learned counsel appearing for the Respondent raised

preliminary objection stating that Section 37 (2) of the Arbitration Act

provides an appeal. He has also relied on AIR 2002 Bombay 289 BASF

Styrenics Pvt. Ltd V/s. Offshore Industrial Construction Pvt. Ltd. The

position of law, as referred above, is not in dispute. It is clear that against

the order of accepting the plea referred to in Sub-Section 2 of Sub-

Section 3 of Section 16, an appeal is maintainable.

5 The point so raised by the Petitioner is because of the last

sentence in the order i.e. "the claim of the claimants, stands dismissed",

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as while accepting Respondent's application, the arbitrator has rejected

the claims of the Petitioner. This rejection of the claim in such fashion,

therefore, compel the Petitioner to invoke Section 34 of the Arbitration

Act.

6 After going through the order, as well as, the applications

and submissions so raised, it is made clear that this order is intended to

dispose of the application under Section 16 of the Arbitration Act. There

was no question of deciding the claims and/or rejecting the claims at this

stage in such fashion.

7 Therefore, in the interest of justice and to avoid further

complications and to give opportunity to both the parties, it is made clear

that this order is only allowing the Respondent's application under

Section 16. There is no question of rejecting the claim of the claimants

as observed above without assigning any reason. It is contrary to law.

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    8              In view of this, the order is modified to the above extent and 




                                                               

restricted to the acceptance of plea of jurisdiction as raised by the

Respondent. The liberty is granted to the Petitioner to take appropriate

steps / proceedings or to file appeal under Section 37 of the Arbitration

Act.

9 All points are kept open for both the parties.

10 The Petition is accordingly disposed of. No costs.

[ ANOOP V. MOHTA, J ]