(Through Hybrid Mode) vs Ratnakar Swain
2023 Latest Caselaw 4478 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                              WP(C) No.1435 of 2023

                              (Through Hybrid mode)
            Santosh Kumar Acharya                 ....            Petitioner

                                              Mr. S. K. Mishra, Advocate

                                      -Versus-
            Ratnakar Swain                        ....       Opposite Party

                                               Mr. S. S. Panda, Advocate
                    Mr. Sanjit Mohanty, Senior Advocate (Amicus Curiae)


                    CORAM: JUSTICE ARINDAM SINHA
                                      ORDER

26.04.2023 Order No.

05. 1. Mr. Mishra, learned advocate appears on behalf of petitioner and submits, impugned is order dated 23rd December, 2022 made by the arbitral Tribunal in directing on provision in section 26, Arbitration and Conciliation Act, 1996, at instance of opposite party-claimant in the reference. He submits, the direction for appointment of expert evaluator was allowed, with consequential direction upon parties to suggest names.

2. He draws attention to claim made by opposite party and his client's counter claim as respondent in the reference. He demonstrates therefrom the claim and counter claim are

simply money claims. As such expanding scope of the reference by including evaluation of assets would expose his client to risk of an award being made beyond four corners of the reference.

3. Mr. Panda, learned advocate appears on behalf of opposite party and relies on judgment of the Supreme Court in SBP & Co. v. Patel Engineering Ltd., reported in (2005) 8 SCC 618, paragraph 45 in SCC Online print. Last sentence in the paragraph is reproduced below.

"xx xx xx 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. Such an intervention by the High Courts is not permissible."

4. Mr. Mishra submits, the Supreme Court by its later judgment in Bhaven Construction v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd., reported in (2022) 1 SCC 75, diluted the bar declared in SBP (supra).

5. Mr. Sanjit Mohanty, learned senior advocate is appointed as Amicus Curiae, to assist in adjudication on the question of jurisdiction by superintendence under article 227 in the Constitution, in context of limited interference of Court provided by section 5.

6. List for hearing and disposal on 8th May, 2023, marked at 2.00 P.M.

7. Interim order to continue till next date of hearing. It is modified as only directed against impugned order. The Tribunal may otherwise proceed with the reference.

(Arindam Sinha) Judge

RKS