Bombay High Court
Business India Exhibitions Pvt. ... vs Honble Arvind V. Savant (Retd. ... on 18 July, 2017
Bench: Anoop V. Mohta
1 NMW 302 of 2017
VAT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. 1391 OF 2017
WITH
NOTICE OF MOTION No. 302 OF 2017
IN
WRIT PETITION No. 1391 OF 2017
1. Business India Exhibitions)
Pvt. Ltd., a private limited )
company duly incorporated )
under the Companies Act, 1956)
and having its registered office )
at B-201/218, Dalamal Tower, )
Nariman Point,Mumbai 400021)
2. Mr. Ashok Advani )
of Mumbai Indian Inhabitant, )
residing at 21, Framroze Court,)
Marine Drave, Mumbai400 020)
3. Business India Publications)
Ltd., )
a limited company duly )
incorporated under the )
Companies Act, 1956 and )
having its registered office at )
14th Floor, Nirmal Building )
Nariman Point, Mumbai 400021)...Petitioners
Versus
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2 NMW 302 of 2017
1.1. Hon'ble Arvind V. Savant )
(Retd. Justice), an Indian )
Inhabitant and Former Chief )
Justice of the Kerala High Court)
residing at / having his office )
address at 104-A, Mittal Tower,)
Nariman Point, Mumbai-400 021)
2. Fursa Mauritius SPV1 )
is a special purpose vehicle )
incorporated under the laws )
of Maritius and having its )
registered office at 608 St. )
James Court, St. Dennies )
Street Port Louis, Republic of )
Mauritius )
1.3. Navigator Capital Advisor )
Pvt. Ltd. )
a company incorporated under )
the Companies Act, 1950, )
having its office at 79, Gujarati)
society, Nehru Road, )
Vile Parle (East), Mumbai- )
400 057 )...Respondents
...........
Ms. Soma Singh i/b. Mr. Vivek Sharma, for the Petitioners
Ms.Kshama Loya i/b. Nishith Desai Associates,for the Respondents
...........
CORAM: ANOOP V. MOHTA AND
SMT. AJUJA PRABHUDESSAI,JJ.
DATE :- 18TH JULY, 2017.
ORAL JUDGMENT -[PER ANOOP V. MOHTA, J.]
1. Heard finally. Rule. Rule is made returnable forthwith. The name
3 NMW 302 of 2017
of Respondent No.1 is deleted. Amendment to be carried out accordingly.
2. The Petitioners have invoked the Article 226 of the Constitution of
India and thereby challenged the impugned order passed by the Private
Arbitral Tribunal. This Court on 24th April, 2017 not entertained the
Petitioners' case and permitted them to withdraw the petition (Writ
Petition No. 857 of 2017), with liberty to take out appropriate steps
challenging the order impugned. The petition accordingly was disposed
of as withdrawn. The Petitioners, however, again filed the present writ
petition.
3. Considering the scheme of Arbitration and Conciliation Act, 1996
(for short, "the Arbitration Act") and the remedies so available and
provided for every stage/ every order, there is no question of entertaining
the writ at this stage or at any stage of such arbitral proceedings. The
parties need to invoke the remedy so available under the Arbitration Act.
4. The learned counsel appearing for the Petitioners has relied upon a
Division Bench Judgment of Madhya Pradesh High Court, (Bench at
Indore) in Manish Kedia & Ors. Vs. Shri S.L. Jain (Retired
4 NMW 302 of 2017
Justice) & Anr.1, whereby it is concluded as under:-
"14. In the considered opinion of this court once the arbitral
proceedings have come to an end by virtue of Section 32 of the
Act of 1996, the learned Arbitrator has become functus officio
and could not have passed any further orders and, therefore,
the writ petition under article 226 of the Constitution of India
is certainly maintainable in the peculiar facts and
circumstances of the case."
5. We are not inclined to such view on facts and on settled law of
Supreme Court in Lalitkumar V. Sanghavi (D). Th. LRs Neeta Lalit
Kumar Sanghavi & Anr. Vs. Dharamdas V. Sanghavi & Ors. 2.
The relevant portion of the judgment reads as under:-
"45..................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 Article 226 or 227 of the Constitution of India.
Such an intervention by the High Courts is not permissible".
That need not, however, necessarily mean that the application
such as the one on hand is maintainable under Section 11 of the
Act."
"14. On the facts of the present case, the applicability of sub-
clauses (a) and (b) of Section 32 (2) is clearly ruled out and we
are of the opinion that the order dated 29 th October, 2007 by
2 (2014) 7 SCC 255
5 NMW 302 of 2017
which the Tribunal terminated the arbitral proceedings could
only fall within the scope of Section 32, sub-Section (2), sub-
clause (c) i.e. the continuation of the proceedings has become
impossible. By virtue of Section 32(3), on the termination of
the arbitral proceedings, the mandate of the arbitral tribunal
also comes to an end. Having regard to the scheme of the Act
and more particularly on a cumulative reading of Section 32
and Section 14, the question whether the mandate of the
arbitrator stood legally terminated or not can be examined by
the court "as provided under Section 14 (2)".
15. The expression "Court" is defined expression under
Section 2(1) (e) which reads as follows:-
"Section 2(1) (e) "Court" means the principal Civil
Court of original jurisdiction in a district, and
includes the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction to
decide the questions forming the subject-matter of
the arbitration if the same had been the subject-
matter of a suit, but does not -include any civil court
of a grade inferior to such principal Civil Court, or
any Court of Small Causes."
16. Therefore, we are of the opinion, the apprehension of
the appellant that they would be left remediless is without basis
in law."
6 NMW 302 of 2017
5. The judgment so referred and relied upon by the Learned Counsel
appearing on behalf of the Petitioner is of Manish Kedia (supra). In
our view, is not acceptable situation in view of the settled position of law
so laid down by the Supreme Court in many judgments.
6. The scope of power under Article 226/227 of the Constitution of
India, to interfere with arbitral proceedings against any order passed by
the Arbitral Tribinal, is well defined. The Himachal Pradesh High Court
in case of M/s. P.K. Construction Co. and another v. Shimla
Municipal Corporation and others1 has observed the same view that
Writ is not maintainable. This Court also in Chhabildas s/o Tukaram
Khadke Vs. Jalgaon Municipal Council & Ors. 2 refused to entertain
writ petition against the arbitral tribunal order. Even otherwise, once the
scheme of Arbitration Act is recognized, accepted and provided all the
remedies, there is no question to entertain any writ petition, pending such
arbitral proceedings, specifically when, against such order, the remedy is
available needs to be invoked. Present petition, therefore, is rejected, at
this stage itself, as not maintainable.
7. However, it is made clear that the remedy available to the
Petitioner under the Arbitration Act be invoked. Accordingly, writ
petition is dismissed with above stated liberty.
1 AIR 2017 Hiachal Pradesh 103
2 2017 (4) Mh.L.J.66
7 NMW 302 of 2017
8. In view of the disposal of writ petition, nothing survives in the
notice of motion. Notice of Motion No. 302 of 2017 is also disposed of
accordingly. No order as to costs.
(SMT. ANUJA PRABHUDESSAI, J.) (ANOOP V. MOHTA, J.)
