TaxTMI 
TaxTMI 
TaxTMI 
2000 (8) TMI 1000
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....e true nature of the said order and further if a person is aggrieved by such order, can he file application in a Court and whether such an application could be entertained and if so, in which forum? In Sundaram Finance Ltd. v. NEPC India Ltd. [1999] 2 SCC 479/ 19 SCL 278 (SC) while deciding the question as to whether under section 9 of the Arbitration and Conciliation Act, 1996, the Court has jurisdiction to pass an interim order even before commencement of arbitration proceeding and before an arbitrator is appointed, after analysing different provisions of the Arbitration Act, 1940 and the present Act of 1996 an observation has been made to the effect "under the 1996 Act, appointment of Arbitrator is made as per the provisions of section 11 which does not require the Court to pass a judicial order appointing Arbitrator." In Ador Samia (P.) Ltd. v. Peekay Holdings Ltd. [1999] 8 SCC 572/ 22 SCL 80 this Court came to the conclusion that the Chief Justice of the High Court or his designate under section 11(6) of the 1996 Act, acts in administrative capacity, and such, an order of the Chief Justice is not passed by any Court exercising any judicial function nor is it a Tribunal having ....
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.... Law way back in 1985 adopted the Uncitral Model Law of International Commercial Arbitration and since then number of countries have given recognition to that Model in their respective legislative system. With the said Uncitral Model Law in view the present Arbitration and Conciliation Act, 1996 has been enacted in India replacing the Indian Arbitration Act, 1940, which was the principal legislation on Arbitration in the country that had been enacted during the British Rule. The 1996 Act provides not only for domestic arbitration but spreads its sweep to International Commercial Arbitration too. The Indian Law relating to the enforcement of Foreign Arbitration Awards provides for greater autonomy in the arbitral process and limits judicial interven- tion to a narrower circumference than under the previous law. To attract the confidence of International Mercantile community and the growing volume of India's trade and commercial relationship with the rest of the world after the new liberalisation policy of the Government, Indian Parliament was persuaded to enact the 1996 Act in Uncitral Model and, therefore, in interpreting any provisions of the 1996 Act Courts must not ignore the ob....
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....rade and commence is not affected on account of litigations before a Court. When United Nations established the Commission on International Trade Law it is on account of the fact that the General Assembly recognised that disparities in national laws governing international trade created obstacles to the flow of trade. The General Assembly regarded the Commission on International Trade Law as a medium which could play a more active role in reducing or removing the obstacles. Such Commission, therefore, was given a mandate for progressive harmonization and unification of the law of International Trade. With that objective when Uncitral Model has been prepared and the Parliament in our country enacted the Arbitration and Conciliation Act, 1996 adopting Uncitral Model, it would be appropriate to bear the said objective in mind while interpreting any provision of the Act. The statement of objects and reasons of the Act clearly enunciates that the main objective of the legislation was to minimise the supervisory role of Courts in the arbitral process. If a comparison is made between the language of section 11 of the Act and article 11 of the Model Law it would be apparent that the Act ha....
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....ting to the appointment of an arbitrator. If this approach is adhered to, then there would be no grievance of any party and in the arbitral proceeding, it would be open to raise any objection, as provided under the Act. But certain contingencies may arise where the Chief Justice or his nominee refuses to make an appointment of an arbitrator and in such a case a party seeking appointment of arbitrator cannot be said to be without any remedy. Bearing in mind the purpose of legislation, the language used in section 11(6) conferring power on the Chief Justice or his nominee to appoint an arbitrator, the curtailment of the powers of the Court in the matter of interference, the expanding jurisdiction of the arbitrator in course of the arbitral proceeding, and above all the main objective, namely, the confidence of the international market for speedy disposal of their disputes, the character and status of an order appointing arbitrator by the Chief Justice or his nominee under section 11(6) has to be decided upon. If it is held that an order under section 11(6) is a judicial or quasi-judicial order then the said order would be amenable for judicial intervention and any reluctant party may....
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....1996 it would appear that under the English Act it is the Court which has been vested with the function of appointment of an arbitrator upon failure of the agreed appointment procedure and an order made by the Court becomes appealable under section 11(5) whereas under the Arbitration and Conciliation Act, 1996 in India the power of appointment is vested with the Chief Justice or his nominee. 3. An analysis of different sub-sections of section 11 would indicate the character of the order, which the Chief Justice or his nominee passes under sub-section (6) of section 11. Sub-section (3) and sub-section (4) deals with cases, in which a party fails to appoint an arbitrator or the arbitrators fail to agree on the third arbitrator and thus seeks to avoid frustration or unreasonable delay in the matter of constitution of the arbitral Tribunal. It authorises the Chief Justice of India or the Chief Justice of a High Court concerned, or any person or institution designated by him to make the appointment upon request of a party, if the other party has failed to appoint an arbitrator within thirty days from the receipt of a request to that end. Sub-sections (4), (5) and (6) designedly use the....
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....appoint an arbitrator after deciding the contentious issues would be an act of non-performance of duty and in view of what has been stated earlier the concerned authority could be directed by mandamus to perform its duty. 5. Having answered the two basic questions raised, as above, let us now examine the impugned orders in the different cases, which are before us. In S.L.P. (Civil) No. 11522-11526 of 1999, the order of the learned Chief Justice of Bombay High Court in appointing an arbitrator is the subject matter of challenge. Since the order of appointment passed by the learned Chief Justice, is administrative in nature and the learned Chief Justice does not function as a Court or a Tribunal, the said order is not amenable to the jurisdiction of this Court under article 136 of the Constitution. The special leave petitions, are accordingly dismissed. 6. Special Leave Petition (Civil) No. 19549 of 1999 is directed against the order of the learned Chief Justice of the Gauhati High Court, refusing to appoint an arbitrator, after entertaining contentious issues and deciding the said issues by elaborate consideration, on a finding that there is no valid agreement for arbitration. Eve....