Sanjeev Sarin And Anr. vs Rita Wadhwa And Ors.
2001 Latest Caselaw 1640 Del

JUDGMENT

S.K. Agarwal, J.

1. By this application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC'), petitioners-applicants are seeking review of the order dated 20th October, 2000.

2. Facts in brief are: the respondent No. 1 is real sister of the petitioners. After the death of their mother, petitioners filed an application under Sections 8, 11, 15(1)(a) of the Arbitration and Conciliation Act, 1996 (for short, the Act) praying for appointment of a retired judge of this court as an Arbitrator to adjudicate the dispute regarding division of the estate left behind by their mother. The petition was based on a jointly signed letter by the petitioners and the respondent addressed to S/Shri Surender Kumar of Jullundhar and Arun Kumar of Amritsar, requesting them to act as arbitrators for division of all movable and immovable assets, left behind by their mother in three equal proportions and settlement of allied matters. Neither the "original arbitration agreement" nor "duly certified copy thereof" was filed, as required by Sub-section (2) of Section 8 of the Act. Only typed copy of the letter attested by the lawyer was filed.

3. The respondents in their written reply denied the arbitration agreement. As the existence of the arbitration agreement itself was denied, by order dated 20.10.2000 issues were framed and parties were directed to lead evidence by way of affidavits. It may be mentioned here that none of the parties had cited any case law on the subject, on that date. This procedure was followed as per the law laid down by the Supreme Court in Wellington Associates Ltd. v. Kirit Mehta, wherein, referring to its earlier decisions, including Ador Samia Pvt. Ltd. v. Peekay Holdings Ltd. and Ors. , , it was held:

"Even if the Chief Justice of India or his designate under Section 11(12) is to be treated as an administrative authority, the position is that when the said authority is approached seeking appointment of an arbitrator/arbitrator tribunal under Section 11 and a question is raised that there is, to start with, no arbitration clause at all between the parties, the Chief Justice of India or his designate has to decide the said question".

4. The petitioners are now seeking review of the said order on the ground that new and important material, which could not be brought to the notice of the court despite exercise of due diligence and that there is an error apparent on the face of the record. Learned counsel for the petitioners argued that under Section 11(6) of the Act, the Chief Justice or his designate acts in his administrative capacity and he does not exercise any judicial function and he has no trapping of judicial authority. Section 16 of the Act excludes jurisdiction of the Chief Justice or of his designate to adjudicate the question of existence of the Arbitration Clause or existence of Arbitration Agreement, that may be raised by the respondent. It primarily falls in the domain of the arbitrator to determine the question of its jurisdiction, if the same is raised. In support of this submission, reliance was placed on the following decisions of the Supreme Court:

(1) Nimet Resources Inc. and Anr. v. Essar Steel Ltd. , JT 2000 (Supp. 1) SC 95, (decided on 27.9.2000);

(2) Konkan Railway Corporation Ltd. and Anr. v. Rani Construction Pvt. Ltd. , ; and

(3) Malaysian Airlines Systems Bhd (II) v. STIC Travels (P) Ltd. , 2000 (7) SCALE 724 (decided on 30.11.2000).

5. It was argued that the judgments in the above noted cases had either note come or were not reported by then, therefore, these could not be brought to the notice of this court when the impugned order was passed, and that it now stands finally settled that in the application seeking appointment of an arbitrator, the court has no jurisdiction to hold any enquiry with regard to existence of the arbitration agreement or arbitration clause. Learned counsel for the respondents argued to the contrary.

6. I have considered the rival contentions. In my view, there is no need to decide the above issue at this stage, because even if argument of the learned counsel for the petitioner is assumed to be correct, the petition for review would not be maintainable for more than one reason. Firstly, the "new and important matter" in Order 47 Rule 1 CPC, refers to evidence or other matters in the nature of evidence and not the legal authority that may or may not have been in existence and not brought to the notice of the court on the given date. Secondly, earlier by Sub-section (a) of Section 41 of the Arbitration Act, 1940, CPC was made applicable to all proceedings before the court and to all appeals etc. But, this provision appears to have been deleted under the new Arbitration and Conciliation Act, 1996. Further Section 19 of the Act provides that arbitral tribunal shall not be bound by the Code of Civil Procedure or the evidence Act. The power to review has to be conferred specifically by law or by necessary implication, as held by the Supreme Court in Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, . In this regard, learned counsel for the petitioner had placed reliance on the decision in Y. Venkanna Chowdary v. The Special Deputy Collector, . Ratio of the observations made in this case is not applicable to the facts of this case. There the question was with regard to the rate of interest, on the amount of compensation awarded under the Land Acquisition Act, and CPC was applicable, which is not the case here.

7. For the forgoing reasons, I find no merit in the application for review, and the same is dismissed. No order as to costs.