Madras High Court
C. Ramaradjou vs M/S Padhmam Herbal Care P Ltd on 6 September, 2021
CMA.No.2770 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.2770 of 2011
and
CMP No.6336 of 2020
C. Ramaradjou ...Appellant
vs.
M/s Padhmam Herbal Care P Ltd.,
Puducherry
Represented by its Managing Director ... Respondent
Civil Miscellaneous Appeal filed under Section 37 of Arbitration
and Conciliation Act, 1996, to set aside the fair and decreetal order dated
21.01.2009 made in A.O.P. No.47 of 2006 on the file of Principal District
Judge, Pudhucherry.
For Appellant : Mr. Ashokapathy
for M/s.Pass Associates
For Respondent : Served - No Appearance
JUDGMENT
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CMA.No.2770 of 2011
(This case was heard through Video Conferencing)
This appeal has been filed under Section 37 of the Arbitration and
Conciliation Act challenging the order dated 21.01.2009 passed by the
learned Principal District Judge, Pondicherry in AOP No.47 of 2006 filed
by the appellant under Section 34 of the Arbitration and Conciliation Act,
challenging the order dated 23.06.2006 passed by the learned Arbitrator
under Section 16 of the Arbitration and Conciliation Act.
Brief facts leading to the filing of this appeal under Section 37 of the
Arbitration and Conciliation Act :
2. The appellant is the respondent in the Arbitration before the
Arbitral Tribunal comprising of the Sole Arbitrator and the respondent is
the claimant. There seems to be some disputes pertaining to a
construction contract wherein there is an Arbitration clause.
3. The respondent / claimant has referred the dispute to Arbitration
and a Sole Arbitrator was appointed, who had acted upon the reference.
The appellant / respondent has questioned the jurisdiction of the Arbitral
Tribunal under Section 16 of the Arbitration and Conciliation Act
alleging that the Sole Arbitrator is an interested party to the dispute and
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CMA.No.2770 of 2011
therefore, he cannot act as an Arbitrator for adjudicating the disputes
between the parties.
4. By order dated 23.06.2006 in an application filed by the
appellant / respondent under Section 16 of the Arbitration and
Conciliation Act questioning the jurisdiction of the Arbitral Tribunal, the
Sole Arbitrator passed the following order :
1. The Arbitrator has got absolute jurisdiction to adjudicate the disputes under
reference.
2. The arbitrator has got competency to adjudicate the disputes
3. The arbitrator declares that there exists a valid agreement dated 27-2-2002
between the parties and this agreement contains an arbitration clause.
4. The appointment of the arbitrator by the company is in accordance with the
conditions of the agreement and the Arbitration Act 1996.
5. As the sole arbitrator has been appointed by the party inconsonance with
the conditions of agreement he has jurisdiction to decide all matters
contemplated in Selection 16.
6. Once the matter reaches the arbitral Tribunal or the sole arbitrator the
parties could approach the courts only in terms of Section 37 or in terms of
Section 34 of the Act.
7. Therefore, the preliminary issues are decided accordingly and ordered thus
as stated above.
8. The parties should come up ready to cooperate with the arbitrator for the
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CMA.No.2770 of 2011
adjudication of claims from the next sitting onwards and to be held on 15-
7-2006.
5. Aggrieved by the same, the appellant has filed an application
under Section 34 of the Arbitration and Conciliation Act before the
learned Principal District Judge, Pondicherry in AOP No.47 of 2006.
The learned Principal District Judge, Pondicherry under the impugned
order dated 21.01.2009 passed in AOP No.47 of 2006 dismissed the
application filed by the appellant under Section 34 of the Arbitration and
Conciliation Act.
6. Aggrieved by the same, the present appeal has been filed under
Section 37 of the Arbitration and Conciliation Act.
7. Section 37 of the Arbitration and Conciliation Act reads as
follows :-
37. Appealable orders.—
(1) An appeal shall lie from the following orders (and from no others) to the Court
authorised by law to hear appeals from original decrees of the Court passing the
order, namely:—
(a)refusing to refer the parties to arbitration under section 8;
(b)granting or refusing to grant any measure under section 9;
(c)setting aside or refusing to set aside an arbitral award under section 34.
(2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.
(a)accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or
(b)granting or refusing to grant an interim measure under section 17.
(3)No second appeal shall lie from an order passed in appeal under this section, but
nothing in this section shall affect or take away any right to appeal to the Supreme
Court.
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CMA.No.2770 of 2011
8. Only in the aforementioned circumstances, an appeal can be
filed. In the case on hand, an order has been passed by the sole
Arbitrator under Section 16 of the Arbitration and Conciliation Act,
rejecting the contention of the appellant that the Arbitral Tribunal does
not have jurisdiction to hear the dispute as according to him the Sole
Arbitrator is an interested party to the Arbitration. The said order was
passed by the Sole Arbitrator on 23.06.2006. Instead of filing the
statutory appeal under Section 37 as against the said order, the
appellant has wrongly approached the learned Principal District Judge,
Pondicherry in AOP No.47 of 2006 under Section 34 of the Arbitration
and Conciliation Act, when admittedly, no Arbitral Award has been
passed and the impugned order is only an order passed under Section
16 of the Arbitration and Conciliation Act. Thereafter, the learned
Principal District Judge has also dismissed the application filed under
Section 34 of the Arbitration and Conciliation Act, though not on the
ground that the said application is not maintainable but on the ground
that the order which is the subject matter of the challenge cannot be
entertained as the appellant has not made out a case for interference as
laid down under the provisions of Section 34 of the Arbitration and
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CMA.No.2770 of 2011
Conciliation Act. Thereafter, aggrieved by the said order, the present
appeal has been filed under Section 37 of the Arbitration and
Conciliation Act.
9. This Court is of the considered view that the appellant having
not filed a statutory appeal under Section 37 of the Arbitration and
Conciliation Act, aggrieved by the order dated 23.06.2006 passed by the
Arbitral Tribunal by which, the application filed by the appellant under
Section 16 of the Arbitration and Conciliation Act, questioning the
jurisdiction of the Arbitral Tribunal was rejected, the present appeal is
not maintainable in view of the fact that the appellant had chosen to file
an application under Section 34 of the Arbitration and Conciliation Act
and only thereafter has filed the present appeal under Section 37 of the
Arbitration and Conciliation Act.
10. It is also brought to the notice of this Court that subsequent to
the passing of the order dated 23.06.2006 passed by the Arbitral
Tribunal under Section 16 of the Arbitration and Conciliation Act,
which was the subject matter of the challenge under Section 34 of the
Arbitration and Conciliation Act before the learned Principal District
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CMA.No.2770 of 2011
Judge, Pondicherry in AOP No.47 of 2006, the Arbitral Tribunal has
passed a final award against the appellant. This being the case, this
Court is of the considered view that since the present appeal which has
been filed as against the order passed under Section 34 of the
Arbitration and Conciliation Act is not maintainable in view of the fact
that the Section 34 application filed by the appellant aggrieved by the
order dated 23.06.2006 passed under Section 16 of the Arbitration and
Conciliation Act is also not maintainable, liberty will have to be granted
to the appellant to raise the question of jurisdiction of the Arbitral
Tribunal to decide the dispute between the parties in the application
filed under Section 34 of the Arbitration and Conciliation Act, if at all
pending since the appellant has been consistently raising such a plea
ever since the receipt of the notice in the arbitration proceedings. Just
because, the appellant has not exercised his legal options as against the
order dated 23.06.2006 passed by the Arbitral Tribunal in a proper way,
the appellant should not be left remediless.
11. In the result, this Court is of the considered view that the
present appeal filed by the appellant is not maintainable as no arbitral
award is the subject matter of challenge in this appeal and the subject
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CMA.No.2770 of 2011
matter of challenge is only an order dated 23.06.2006 passed by the
Arbitral Tribunal under Section 16 of the Arbitration and Conciliation
Act, which was not challenged earlier as per the procedure contemplated
under the Act. The present appeal which has challenged the order dated
23.06.2006 passed under Section 16 of the Arbitration and Conciliation
will not fall within the purview of Section 37 of the Arbitration and
Conciliation Act as the appellant has instead of challenging the very
same order by filing an appeal has chosen to file an application under
Section 34 of the Arbitration and Conciliation Act before the learned
Principal District Judge, even without there being an Arbitral Award,
which is not maintainable.
12. For the foregoing reasons, this Civil Miscellaneous Appeal is
dismissed. However, liberty is granted to the appellant to raise the
question of jurisdiction of the Arbitral Tribunal to decide the dispute
between the parties on merits in the application filed under Section 34 of
the Arbitration and Conciliation Act, if it is pending before any
competent Court. No costs. Consequently, connected miscellaneous
petition is closed.
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CMA.No.2770 of 2011
06.09.2021
ab/vsi2
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
To
1. The Principal District Judge,
Pudhucherry.
2. The Section Officer,
V.R. Section,
High Court, Madras – 104.
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CMA.No.2770 of 2011
ABDUL QUDDHOSE, J.
vsi2
C.M.A.No.2770 of 2011
06.09.2021
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