Delhi High Court
Rajeev Gupta vs Delhi Metro Rail Corporation ... on 15 September, 2015
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 8085/2015
RAJEEV GUPTA ..... Petitioner
Through: Mr. Sanjay Kumar, Adv.
Versus
DELHI METRO RAIL CORPORATION LIMITED ..... Respondent
Through: Mr. Rajiv Chandhiok, Adv. with Mr.
Puneet Garg, Law Officer.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 15.09.2015
1. Passover is sought on behalf of the counsel for the petitioner.
2. The counsel for the respondent appearing on advance notice states
that the petitioner, by keeping this petition alive, is seeking adjournments
before the Arbitral Tribunal.
3. The petition impugns the order dated 25th April, 2015 of the Sole
Arbitrator, in arbitration underway between the petitioner and the
respondent Delhi Metro Rail Corporation Limited (DMRC) under the
provisions of the Arbitration and Conciliation Act, 1996.
4. The petition is entirely misconceived. It is the settled position in law
that the writ petitions with respect to the arbitral proceedings are not
maintainable. The seven Judge Bench of the Supreme Court in S.B.P. and
Co. Vs. Patel Engineering Ltd. (2005) 8 SCC 618 held that there is no
warrant for the approach adopted by some of the High Courts that any order
passed by an Arbitral Tribunal during arbitration would be capable of being
challenged under Article 226 or 227 of the Constitution of India. It was held,
(i) that Section 37 of the Arbitration Act makes certain orders of the
Arbitral Tribunal appealable; (ii) under Section 34 the aggrieved party has
an avenue for ventilating his grievance against the award including any in-
between orders that might have been passed by the Arbitral Tribunal acting
under Section 16 of the Act; (iii) that the party aggrieved by any order of the
Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act,
has to wait until the award is passed by the Tribunal - this appears to be the
scheme of the Act; (iv) the Arbitral Tribunal is after all, the creature of a
contract between the parties i.e. Arbitration Agreement even though if the
occasion arises, the Chief Justice may constitute it based on the contract
between the parties; but that would not alter the status of the Arbitral
Tribunal; it will still be a forum chosen by the parties by agreement; that
thus the orders passed by the Arbitral Tribunal are capable of being
corrected by the High Court under Article 226 or 227 of the Constitution and
such an intervention by the High Courts, is not permissible; (v) that the
object of minimizing judicial intervention while the matter is in the process
of being arbitrated upon, will certainly be defeated if the High Court could
be approached under Article 227 or under Article 226 of the Constitution
against every order made by the Arbitral Tribunal; and, (vi) therefore it is
necessary that once the arbitration has commenced in the Arbitral Tribunal,
parties have to wait until the award is pronounced unless of course a right of
appeal is available to them under Section 37 of the Act even at an earlier
stage.
5. A Division Bench of this Court in Awasthi Construction Co. Vs.
Govt. of NCT of Delhi MANU/DE/5926/2012 faced with the same issue
was shown a judgment of the High Court of Patna in Senbo Engineering
Limited v. State of Bihar AIR 2004 Patna 33 and noticed that the High
Courts of Bombay and Allahabad also have held the writ remedy to be
available against an order of the Arbitral Tribunal against which no remedy
was available but differed from the same. The same view has been reiterated
by the subsequent Division Benches in ATV Projects India Ltd. Vs. Indian
Oil Corporation Ltd. 200 (2013) DLT 553 and in Dhanraj Bajaj and
Company vs. Navodaya Vidayala Samiti MANU/DE/2288/2014.
6. The Supreme Court in Lalitkumar V. Sanghavi Vs. Dharamdas V.
Sanghavi (2014 )7 SCC 255 held that the view taken by the Bombay High
Court that against an order of the Arbitral Tribunal jurisdiction of the High
Court under Article 226 of the Constitution can be invoked is not in
accordance with law laid down in S.B.P. and Co. supra.
7. At this stage, the counsel for the petitioner appears but upon being
asked to show as to how the writ petition lies against an order of the
Arbitral Tribunal, only states that an Arbitral Tribunal is a Court and since
against the orders of the Court, petitions under Article 227 of the
Constitution of India are maintainable, this petition would lie.
8. Interestingly, this petition has not been filed as a petition under
Article 227 which would bear the nomenclature CM(M) but as a petition
under Article 226 of the Constitution of India.
9. The counsel for the petitioner then seeks adjournment to search the
case law to support maintainability of the petition.
10. The Supreme Court and Division Benches of this Court having
pronounced on the matter, the question of granting any adjournment does
not arise; even otherwise, the counsel ought to have prepared the matter
before filing the petition and / or before appearing in the same, inasmuch as
the listing itself of the petition was subject to the objection as to the
maintainability on this aspect.
11. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 15, 2015
Bs/pp
