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Article 226 in The Constitution Of India 1949
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Awasthi Construction Co. vs Govt Of Nct Of Delhi & Anr. on 16 October, 2012
Atv Projects India Ltd. vs Indian Oil Corporation Ltd. & Anr on 29 April, 2013

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Bombay High Court
Rashtriya Chemical vs J.S. Ocean Liner Pte. Ltd on 20 April, 2010
Bench: J.N. Patel, A.P. Bhangale


                       ORIGINAL SIDE
               WRIT PETITION NO.184 OF 2010

     1. Rashtriya Chemical

        Fertilizers Ltd., a
        Public Sector Undertaking,
        registered and/or
        incorporated under the
        provisions of Companies

        Act, 1956, having its
        registered office at
        Administrative Building,
        Chembur, Mumbai-400 074.
     2. Mr. K.C. Prakash,
        adult, Indian Inhabitant
        and Company Secretary
        of Petitioner No.1

        abovenamed, working for
        gain at Administrative

        Building, Chembur,
        Mumbai-400 074.              ....         Petitioners

         - Versus -

     1. J.S. Ocean Liner Pte. Ltd.,
        a body corporate,
        registered under the laws
        of Singapore, having its

        registered office at
        18-03, High Street Centre,
        1, North Bridge Road,
        Singapore-179 094.

     2. Indian Council of
        Arbitration, having its
        office at Federation House,
        Tansen Marg, New Delhi -
        110 001.

                                     ::: Downloaded on - 09/06/2013 15:51:53 :::

     3. Mr. Jagdish C. Seth,
        an adult, Indian

        Inhabitant, having his
        office at 917, Dalamal
        Tower, 211, Nariman
        Point, Mumbai-400 021.

     4. Captain V.K. Gupta,
        an adult, Indian
        Inhabitant having his
        office address at 124,

        Maker Tower, L ,
        Cuffe Parade, Mumbai -
        400 005.

     5. Mr. G.J. Kodwaney,
        an adult, Indian
        Inhabitant having his
        address at 29/12-C,
        Mahesh Rose, 4 Bungalows,

        Andheri (West),
        Mumbai-400 058.           ....         Respondents

     Dr. Milind Sathe, Senior Advocate with
     Shri Ashish Kamath i/b M/s. M.P. Savla

     & Co. for the Petitioners.

     Shri S.U. Kamdar, Senior Advocate with
     Ms Pooja Patil i/b Shri Ashwin Shankar
     for Respondent No.1.

                                  ::: Downloaded on - 09/06/2013 15:51:53 :::

                              CORAM: J.N. PATEL AND

                                     A.P. BHANGALE, JJ.

                              RESERVED ON       : APRIL 12, 2010

                              PRONOUNCED ON: APRIL 20, 2010

     JUDGMENT (Per A.P.Bhangale, J.):

1. Rule. The learned counsel appearing on behalf of respondent No.1 waives notice. By consent, the rule is made returnable forthwith. Heard learned counsel for the petitioners and respondent No.1.

2. By this writ petition under Article 226 of the Constitution of India, the petitioners are praying for issuance of a writ of mandamus in the nature of an order or direction, ordering and/or declaring that the arbitral proceedings between the petitioners and respondent No.1 stands terminated and the Arbitral Tribunal consisting of Mr. Jagdish C.

Sheth, Captain V.K. Gupta and Mr. G.J. Kodwaney has ceased to have jurisdiction over the disputes with further prayer to quash and set aside the order dated 24-12-2009, as also the Minutes of the Meeting dated 19-12-2009 and the e-mail dated 18-12-2009, addressed by respondent No.2 to the petitioners.

::: Downloaded on - 09/06/2013 15:51:53 ::: 4

3. Briefly stated, the facts of the case are thus:

Petitioner No.1 is a Public Sector Undertaking, owned by the Government of India and is engaged in the business of chemicals and fertilizers, having its registered office at Chembur, Mumbai-400 074. Petitioner No.2 is the Company Secretary of petitioner Respondent No.1 is a body corporate registered No.1.

under the laws of Singapore. On 6-11-2006, a charter party was executed between the petitioners and respondent No.1. Under Clause 43 of the charter party, the parties had agreed that all disputes arising under the charter party would be settled in India. Clause 43 reads thus:

43. All disputes arising under this charter party shall be settled in India in accordance with the provisions of the Arbitration & Conciliation Act, 1996 (Act No.26 of 1996) or any further amendments thereof and under the Maritime Arbitration Rules of the Indian Council of Arbitration. The Arbitrators to be appointed from out of the Maritime Panel of Arbitrators of the Indian Council of Arbitration. The Arbitrators shall be commercial men.
::: Downloaded on - 09/06/2013 15:51:53 ::: 5

4. On 6-12-2007, respondent No.1 by its Advocate s notice invoked the arbitration clause and requested for a reference of the disputes to arbitration. The petitioners replied to the said notice on 20-12-2007 and both the parties nominated their respective arbitrators, who in turn appointed the presiding arbitrator. Thus, the Arbitral Tribunal was constituted.

5. On or about 2-4-2008 respondent No.1 filed its statement of claim of US$ 293,588.78 against the petitioners, towards purported unpaid freight, which was forwarded to the petitioners through the Indian Council of Arbitration (respondent No.2 herein). The petitioners filed their written statement and counter-claim on 30-6-2008. On 12-12-2009, the Arbitral Tribunal invited the attention of the parties to Rule 20(1) of the Maritime Arbitration Rules (as amended on 1-4-2004) which provides for a maximum limit of two years for making the award, extendable by agreement between the parties to the dispute or by the Maritime Arbitration Committee. While respondent No.1 agreed to extend the time limit upto 31-12-2010, the petitioners through their ::: Downloaded on - 09/06/2013 15:51:53 ::: 6 Advocate s letter dated 17-12-2009 called upon the Arbitral Tribunal to declare itself as functus officio and terminate the arbitral proceedings. The Secretary of respondent No.2 by an e-mail dated 18-12-2009 contended that the time count would commence from 2-4-2008. On 19-12-2009 the petitioners moved an application before the Arbitral Tribunal seeking termination of the arbitral proceedings and ceased and declaration that it became functus officio to have jurisdiction over the disputes between the parties. The Arbitral Tribunal held a meeting on 19-12-2009. The contention of the petitioners was rejected and the order of rejection was communicated to the petitioners on 28-12-2009.

6. Respondent No.1 opposed the petition on the ground that it is frivolous and contrary to the ICA Maritime Arbitration Rules (as amended on 1-4-2004). Respondent No.1 submitted that the petitioners contention that in view of Rule 21 of the Arbitration and Conciliation Act, 1996, the arbitral proceedings commence on the date on which a request for the dispute to be referred to arbitration is received by the respondent, is incorrect as the provision is enacted for the purpose of calculation of ::: Downloaded on - 09/06/2013 15:51:53 ::: 7 limitation and as such no time limit is provided for termination of an arbitral proceedings under the Act and, secondly, the parties are free to extend the time limit and further more, there are various conditions contemplated under the Rules which are to be fulfilled before the commencement of the arbitration proceedings. The Rules and the provisions of the Act are to be read harmoniously petitioners have and not also selectively.

                                           made    a     counter-claim

before the Arbitral Tribunal mention of which is conveniently omitted from their petition as also from their application before the Tribunal. It is also submitted on behalf of respondent No.1 that a party cannot, by time consuming tactics, cause immense delay and then turn around to say that the mandate of Arbitral Tribunal should be terminated. It is further contended that the petitioners have alternative efficacious remedies under the provisions of the Arbitration & Conciliation Act, 1996 and the writ petition is not maintainable in this case. Section 5 of the Act, which incorporates a non-obstante clause, restrains judicial intervention except as specifically provided in Part-I of the Act. The parties are required to participate in the proceedings before the ::: Downloaded on - 09/06/2013 15:51:53 ::: 8 Arbitral Tribunal for final award by the Tribunal. Respondent No.1 had taken out an application for interim award for unpaid, undisputed claim which is pending since August, 2008 and delayed only because of the numerous interim applications made by the petitioners. Respondent No.1 thus blamed the petitioners conduct of delaying the arbitral proceedings before respondent Nos.3 to 5 under the aegis of respondent No.2-Indian Council of Arbitration. The Arbitral Tribunal has already decided the issue raised by the petitioners considering the Rules in the light of the provisions of the Act. In judicial review, a Writ Court cannot substitute its own opinion with that of the Arbitral Tribunal.

7. We have heard at length the submissions made by the learned counsel of the respective parties and have also perused the affidavits on the record as also the rulings cited during the course of the arguments. In our view, the mandamus in the nature of a declaration cannot be granted for the reasons stated herein below:

8. The learned counsel for the petitioners, in support of his submissions, ::: Downloaded on - 09/06/2013 15:51:53 ::: 9 submitted that under the Maritime Rules of Arbitration of ICA, the Arbitral Tribunal shall make the award as expeditiously as possible preferably within six months from the date of the reference, subject to the maximum limit of two years from the date of commencement of the arbitral proceedings, extendable by the parties to the dispute or by the Maritime Arbitration Committee. Rule 20 The overall cannot, in our opinion, be read in isolation.

procedure laid down under the Rules has to be considered. When a party to the proceeding, by making numerous applications at interim stage, cause delay in the conduct of the proceedings before the Arbitral Tribunal, such party cannot plead outer limit fixed under Rule 20 to argue that the Arbitral Tribunal should conclude the hearing within two years. This, in our opinion, is not a hard and fast rule, particularly when the legislative intention is clear to allow the parties the freedom to extend the period of adjudication.

9. The learned counsel for the petitioners then urged that unless agreed otherwise by the parties under Section 21 of the Act, an arbitral proceeding commence on ::: Downloaded on - 09/06/2013 15:51:53 ::: 10 the date on which request for the dispute to be referred to arbitration is received by the respondents. Reference is made to the ruling in the case of M/s. Sundaram Finance Ltd. v. M/s. NEPC India Ltd. {AIR 1999 SC 565} to support the proposition that the interim orders as listed can be passed under Section 9 of the Act. The learned counsel for the petitioners then submitted that in view of ruling Ltd. v.

in M/s.

                       M/s.      Anuptech
                                             Co-op    Housing
     Ltd.     {AIR     1999       Bombay       219}     in       which,           in

paragraph, the Court has observed thus:

To my mind, therefore, in a case where arbitral proceedings have been closed when the order itself ex facie does not amount to nullity, the remedy of civil suit may not be available

10. In the facts and circumstances of the present case, the ruling cannot be of any assistance to the petitioners as the arbitral proceedings are pending. The learned counsel for the petitioners sought to rely upon the ruling in M/s. Senbo Engineering Ltd. v. State of Bihar {AIR 2004 Patna 33) to argue that the Patna High Court held that writ petition under Article 226 can lie against an order ::: Downloaded on - 09/06/2013 15:51:53 ::: 11 terminating proceedings passed by the Arbitral Tribunal. In our opinion, this ruling also cannot came to the rescue of the petitioners in the facts and circumstances of the present case when the arbitration proceedings are still pending, and not terminated.

11. On the other hand, the learned counsel for respondent No.1 submitted that in State of U.P. and others v. Bridge & (India) Ltd. {(1996) 6 SCC 22}, the Apex Court Roof Company has ruled thus:

             21.      There     is     yet     another

            substantial       reason       for     not
            entertaining the         writ petition.

            The contract in     question contains a
            clause providing       inter a1ia      for
            settlement          of     disputes     by

reference to arbitration [Clause 67 of the Contract]. The Arbitrators can decide both questions of fact as well as questions of law. When the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should not follow and adopt that remedy and invoke the extra-

ordinary jurisdiction of the High Court under Article 226. The existence of an effective alternative remedy - in this case, provided in the contract itself - is a good ground for the court to decline to exercise its extra-

::: Downloaded on - 09/06/2013 15:51:53 ::: 12

ordinary jurisdiction under Article

226. The said Article was not meant to supplant the existing remedies at law but only to supplement them in certain well- recognised situations. As pointed out above, the prayer for issuance of a writ of mandamus was wholly misconceived in this case since the respondent was not seeking to enforce any statutory right of theirs nor was it seeking to enforce any statutory obligation cast upon the appellants. Indeed, the very resort to Article 226 whether for issuance of mandamus or any other writ, order or direction -

was misconceived for the reasons mentioned supra.

12. Reference is then made to the majority view expressed by the Constitution Bench in SBP & Co. v. Patel Engineering Ltd. & Anr. {(2005) 8 SCC 618}. In paragraph 16, the Apex Court has observed thus:

16. We may at this stage notice the complementary nature of Sections 8 and 11. Where there is an arbitration agreement between the parties and one of the parties, ignoring it, files an action before a judicial authority and the other party raises the objection that there is an arbitration clause, the judicial authority has to consider that objection and if the objection is found sustainable to refer the ::: Downloaded on - 09/06/2013 15:51:53 ::: 13 parties to arbitration. The expression used in this section is shall and this Court in P. Anand Gojapathi Raju V. P.V.G. Raju and in Hindustan Petroleum Corpn. Ltd. V.

Pinkcity Midway Petroleums has held that the judicial authority is bound to refer the matter to arbitration once the existence of a valid arbitration clause is established. Thus, the judicial authority is entitled to, has to and and bound to decide the jurisdictional issue raised before it, before making or declining to make a reference. Section 11 only covers another situation. Where one of the parties has refused to act in terms of the arbitration agreement, the other party moves the Chief Justice under Section 11 of the Act to have an arbitrator appointed and the first party objects, it would be incongruous to hold that the Chief Justice cannot decide the question of his own jurisdiction to appoint an arbitrator when in a parallel situation, the judicial authority can do so. Obviously, the highest judicial authority has to decide that question and his competence to decide cannot be questioned. If it is held that the Chief Justice has no right or duty to decide the question or cannot decide the question, it will lead to an anomalous situation in that a judicial authority under Section 8 can decide, but not a Chief Justice under Section 11, though the nature of the objection is the same and the consequence of accepting the ::: Downloaded on - 09/06/2013 15:51:53 ::: 14 objection in one case and rejecting it in the other, is also the same, namely, sending the parties to arbitration. The interpretation of Section 11 that we have adopted would not give room for such an anomaly.

13. In Vimal Madhukar Wasnik (Dr.), Nagpur v. Sole Arbitrator {2006 (1) Bom.C.R. 419}, this Court in paragraph 5 has observed thus:

Even if Arbitral Tribunal is held not to be a Tribunal subject to Article 226 or 227, yet considering the provisions of Section 19 of the Act it is not bound by any procedural impediment in its exercise of jurisdiction This Court had refused to exercise its extra-

ordinary jurisdiction on the facts of the case.

14. The learned Counsel for the respondents made a reference to the decision in K. Narayana Raju, Contractor v. Union of India {2006 (2) Arb.LR 267 (AP)} to urge that the Andhra Pradesh High Court held that without prayer for termination of mandate of arbitrator, the petitioner cannot automatically seek appointment of substitute arbitrator.

::: Downloaded on - 09/06/2013 15:51:53 ::: 15

15. Reference is also made to the ruling in Empire Jute Company Limited and others v. Jute Corporation of India Limited and another {(2007) 14 SCC 680} to argue that writ petition is not ordinarily maintainable if arbitration clause exists and dispute between the parties is covered thereby. Writ court should not ordinarily exercise its power of judicial review. In ruling, it is observed thus:

paragraph 18 of the

18. The power of judicial review vested in the superior courts undoubtedly has wide amplitude but the same should not be exercised when there exists an arbitration clause. The Division Bench of the High Court took recourse to the arbitration agreement in regard to one part of the dispute but proceeded to determine the other part itself. It could have refused to exercise its jurisdiction leaving the parties to avail their own remedies under the agreement but if it was of the opinion that the dispute between the parties being covered by the arbitration clause should be referred to arbitration, it should not have proceeded to determine a part of the dispute itself.

16. The Arbitration & Conciliation Act (26 ::: Downloaded on - 09/06/2013 15:51:53 ::: 16 of 1996) was enacted with an objective to cover international and commercial arbitrations as also domestic arbitrations. It provides arbitral procedure which is fair, efficient and capable of meeting the needs of all concerned, with judicial intervention kept at minimal level. While it is an experience that there is delay in justice delivery system mostly due to time consuming tactics, the arbitral procedure expedient provides for a ray of hope for an easy and mechanism to enforce rights and obligations under the contract. Thus, an arbitration clause in a contract is an extremely important collateral clause capable of meeting the needs of the parties concerned.

When an arbitration clause is incorporated in a contract in a clear and unambiguous words, the true effect of it cannot be changed when it can cover all disputes arising out of and in relation to the contract. It is for these reasons that the arbitration clause in a contract is needed to be construed as stand alone, severable, as also final and binding between the parties to the contract. Thus, an arbitration clause stands apart from the rest of the contract in which it is contained, in the sense, that it does not impose obligation upon one party and in favour of the other, but ::: Downloaded on - 09/06/2013 15:51:53 ::: 17 lays down that if any dispute arises with regard to the obligation which one party has undertaken to the other party, such a dispute shall be settled by arbitration. A mechanism which is strong enough to meet myriad situations of every kind is provided under the Act for difficulties in enforcement of an arbitration clause in the contract.

17. In Branch ig Manager, M/s. Magma Leasing & Finance Ltd., & Anr. v. Potluri Madhavilata & Anr. {2009 AIR SCW 7041}, the question that arose for consideration by the Apex Court was, whether an arbitration agreement survived for the purpose of resolution of disputes arising under or in connection with the contract even if its performance has come to an end on account of termination due to breach? The Apex Court following its earlier decisions held that merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising in respect of or with regard to or under the contract. Thus, the Apex Court also affirmatively answered the incidental question as to whether ::: Downloaded on - 09/06/2013 15:51:53 ::: 18 the parties were required to be referred to arbitration under Section 8 of the Act and observed thus:

22. An analysis of Section 8 would show that for its applicability, the following conditions must be satisfied: (a) that there exists an arbitration agreement; (b) that action has been brought to the court by one party to the arbitration agreement against the other party; (c) that the subject-matter of the suit is same as the subject-matter of the arbitration agreement; (d) that the other party before he submits his first statement of the substance of the dispute, moves the court for referring the parties to arbitration; and (e) that along with the application the other party tenders the original arbitration agreement or duly certified copy thereof.
23. Section 8 is in the form of legislative command to the Court and once the pre-requisite conditions as aforestated are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfillment of conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration.

18. In Part-I of the Act, general ::: Downloaded on - 09/06/2013 15:51:53 ::: 19 provisions as to arbitration in India are incorporated, which is known as domestic arbitration. The non-obstante clause in Section 5 ensures that in matters governed by the first part, no judicial authority i.e., Court shall intervene except where so provided under Part- I. Section 7 defines arbitration agreement as an agreement by the parties to submit to arbitration all or certain disputes which have arisen respect or of which a may defined arise legal between them relationship, in whether contractual or not. An arbitration agreement is required to be in writing i.e., in a document by the parties or spelled out from communication between the parties or by admission in exchange of statements as to claim or defence which may be in the form of arbitration clause in a written contract or in the form of a separate agreement. Even if there is a reference in a written contract to a document containing an arbitration clause, it would be constituted or construed as an arbitration agreement in relation to written contract between the parties.

19. Once it is shown that an arbitration clause or agreement is existing, a judicial authority before which action is brought has ::: Downloaded on - 09/06/2013 15:51:53 ::: 20 power to refer parties to arbitration. Section 8 enables a judicial authority to exercise power to refer parties to arbitration upon an application, accompanied with the duly certified copy of arbitration agreement, when made by the applicant at the earliest opportunity before submission of his statement on the substance of the dispute. During the pendency of such application, an arbitration may commence or continue and an arbitral award may be made, subject to interim measures that may be taken by the Court under Section 9 of the Act.

20. Under Section 11(6) of the Act, Chief Justice or his designate can take necessary measures if under an appointment procedure agreed between the parties (unless agreed appointment procedure provide other means to secure the appointment) -

(a) a party fails to act as required under that procedure or

(b) the parties or two appointed arbitrators fail to reach an agreement expected of them under that procedure or ::: Downloaded on - 09/06/2013 15:51:53 ::: 21

(c) a person, including an institution fails to perform any function entrusted to him or it under that procedure.

21. Section 14 of the Act provides for termination of mandate of an arbitrator upon happening of frustrating event such as failure or impossibility to act as an arbitrator.

     Sometimes      unexpected        events          occur       which         are
     beyond     the
                       igcontrol        of     the

principle of frustration under Section 56 of parties alike Indian Contract Act.

(a) An arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and

(b) he withdraws from his office or the parties agree to the termination of his mandate.

22. If controversy persists in respect of inability of the arbitrator to perform his functions or about his failure to act expeditiously, a party aggrieved may (unless otherwise agreed between the parties) apply to the Court to decide on the termination of the ::: Downloaded on - 09/06/2013 15:51:53 ::: 22 mandate. The judicial intervention of the Court is specifically provided for under Section 14(2) of the Act while controversy concerning dejure or de facto inability of the arbitrator to perform his functions continues.

If for any reason the arbitrator has failed to discharge his functions with reasonable promptitude, the party has statutory remedy available under Section 14(2) of the Act to decide prefer an application to the Court with prayer to the controversy regarding termination of arbitrator s mandate. The Court is empowered to consider (a) dejure inability i.e., legal disability of the arbitrator or want of his legitimate authority to arbitrate and (b) de facto inability of the arbitrator to perform his functions as an arbitrator, and can terminate the mandate of the arbitrator on any of the above grounds. There is inbuilt statutory alternative remedy for a party aggrieved by undue delay in arbitral proceedings. In Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd. {2003 (4) Scale 92}, the Apex Court observed as under:

It is true that under the Act, there is no provision similar to section 23 and 28 of the Arbitration Act, 1940 which specifically provided that the Arbitrator shall pass award within ::: Downloaded on - 09/06/2013 15:51:53 ::: 23 reasonable time as fixed by the Court. It is also true that on occasions, arbitration proceedings are delayed for one or the other reason; but it is for the parties to take appropriate action of selecting proper Arbitrator(s) who could dispose of the matter within reasonable time fixed by them. It is for them to indicate the time limit for disposal of the arbitral proceedings. It is for them to decide whether they should continue with Arbitrator(s) who cannot dispose of the matter within reasonable time. However, non-providing of time limit for deciding the dispute by the Arbitrator(s) could have no bearing on the interpretation of Section 34. Further for achieving the object of speedier disposal of dispute, justice in accordance with law cannot be sacrificed. In our view, giving limited jurisdiction to the Court for having finality to the award and resolving dispute by speedier method would be much more frustrated by permitting patently illegal award to operate. Patently illegal award is required to be set at naught, otherwise it would promote injustice.

23. By the above observations, the Apex Court expressed its anxiety to ensure expeditious and speedier justice in accordance with law applicable to arbitration proceedings and also the necessity of judicial intervention to promote the interest of ::: Downloaded on - 09/06/2013 15:51:53 ::: 24 justice. However, the role of Courts is of supervisory nature over arbitral process and judicial intervention need to be as minimum as possible. An arbitrator must be essentially an independent & impartial person possessing requisite qualification, as has been agreed by the parties. If the party becomes aware subsequently that the arbitrator does not possess the eligibility and qualification as required, the appointment may be challenged in view Section 12 of the Act by adopting the procedure prescribed to challenge such appointment as indicated in Section 13 of the Act. The arbitrators are at liberty to withdraw from their office if their appointment is challenged or have option to proceed further and decide the challenge and to pass an award. Such arbitral award can be challenged in accordance with Section 34 of the Act by recourse to the Court on various grounds if there is evidence that party to the arbitral proceedings was incapable to participate in the arbitral proceedings or had no proper notice about the appointment of arbitrator(s) or if in such proceedings the party was unable to present its case, or if the award is passed beyond the scope of controversy submitted by the parties or if the ::: Downloaded on - 09/06/2013 15:51:53 ::: 25 composition of Arbitral Tribunal was not as agreed between the parties. The order passed by the Court under Section 34 as also the order passed under Sections 9, 16(2), 16(3) and 17 of the Act are appealable to the Court which can hear appeals from the original decrees of the Court passing the order. No second appeal is permissible excepting an appeal which a party may prefer to the Apex Court.

concerned, The judicial when authority approached, is or the required Court to bear in mind the object of the Act to achieve speedy disposal of arbitral proceedings with minimal court intervention in such matters.

The provisions as waiver of objections etc. in Sections 4, 12, 15(4) 16(5), 19(1) and 25 are really intended to ensure speedy expeditious disposal and completion of arbitral proceedings. The legislative intention is clear that arbitral proceedings shall not be unduly prolonged by time consuming tactics by one or other party to the dispute.

24. Maritime Arbitration Rules of the Indian Council of Arbitration governed under the Act do prescribe procedure in details which is in aid of the provisions of the Act to conduct the domestic and international ::: Downloaded on - 09/06/2013 15:51:53 ::: 26 maritime arbitrations in India. Arbitration is initiated through the Secretary of the ICA with a request, incorporating required particulars, accompanied by payment of fees etc. as per Rules. The respondents in arbitral proceedings can make a counter claim which is required to be adjudicated by the arbitrators who constituted the Arbitral Tribunal under the Rules is not bound by the provisions of the Civil Evidence Procedure Act. The Code Arbitral and the Tribunal Indian has requisite power to examine witnesses and allow their cross-examination and consider arguments oral as well as written before the Award is passed. Thus, there is alternative and efficacious remedy available for the petitioner considering policy of the law to provide for speedy adjudication by alternative dispute resolution system in accordance with provisions of the Act and inbuilt remedies available to over ride difficulties faced by the parties. The arbitration agreement must be construed ordinarily as deemed to subsist so as to encourage ADR and enable the parties to enforce obligations under commercial contract brought to arbitration. In the present case there is specific arbitration clause 43 in the charter executed between the petitioners and ::: Downloaded on - 09/06/2013 15:51:53 ::: 27 respondent No.1 and reference is pending before the Arbitral Tribunal duly constituted under the Rules of ICA. The Arbitral Tribunal is in seisin of the dispute pursuant to the reference by the parties invoking its jurisdiction by lodging claim and counter claim before it. Thus disputing parties have chosen an alternative, speedy and efficacious remedy for to determine controversy between themselves.

     petition      of
                      ig If
                                  we     entertain
                                       nature       for
     course,       after          years,          the     very         object           and

policy of the Act providing speedy and cheaper mode of adjudication of disputes by process of arbitration would stand frustrated and defeated. In such cases intervention by way of judicial review under Article 226 of the Constitution of India must be kept minimum in very exceptional and a deserving case. The parties must be left to choose their alternative statutory remedies available under the Act. They are required to be exhausted before invoking writ jurisdiction under Article 226 of the Constitution of India. This Court cannot sit as an Appellate Court over decision of Arbitral Tribunal in pending Arbitration proceedings to substitute it s own opinion.

::: Downloaded on - 09/06/2013 15:51:53 ::: 28

25. For all the above reasons, the writ petition is devoid of merits and is liable to be dismissed and is accordingly dismissed. The rule is discharged. No order as to costs.

                  Sd/-                                             Sd/-
     (A.P. BHANGALE, J.)                             (J.N. PATEL, J.)


After the Judgment was pronounced, the learned counsel appearing for the petitioners requested that the interim order granted by this Court may be continued for a period of two weeks to enable the petitioners to seek an appropriate remedy. In view of the fact that this Court had passed the interim order during the pendency of the petition, we are inclined to grant the request, though the same is strongly objected by the learned counsel appearing for respondent No.1. The interim order stands extended by two weeks. It is made clear that no further extension in the matter will be granted. Needless to say, the time consumed in prosecuting the petition shall not be computed for the purpose of limitation; before the arbitral Tribunal.

                  Sd/-                                             Sd/-
     (A.P. BHANGALE, J.)                             (J.N. PATEL, J.)

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