TaxTMI 
TaxTMI 
2017 (4) TMI 1673
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....counterclaim, if any, before the Learned Arbitrator. Mr. Dutta, the Learned Counsel appearing for the Petitioner very fairly submitted that it will always be open to the Respondent to prefer its counterclaim, if any, before the Learned Arbitrator and there cannot be any possible objection to this from his client. Accordingly, there is no reason why the matter should not be placed before the Hon'ble the Chief Justice for appointment of an Arbitrator. Let the matter be placed before His Lordship for nominating a fit and proper person to act as the Arbitrator as prayed for. 2. Likewise, the order dated 26.9.2002, is extracted below: The Court: In exercise of power Under Section 11 of the Arbitration & Conciliation Act,....
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.... an arbitrator by the High Court Under Section 11 of the Arbitration Act) during the course of the arbitral proceedings, Under Section 16 of the Arbitration Act, that the dispute raised by the Respondent was not arbitrable. The arbitrator accepted the aforesaid prayer and held by an order dated 15.1.2004, that the arbitrator had no jurisdiction to entertain the dispute raised by the Respondent-Sarkar & Sarkar, for arbitration. 5. It is essential for us to extract herein Clause 12 of the contractual agreement between the parties. The same is reproduced hereinbelow: Clause 12 - the Engineer-in-charge shall have power to make any alteration in, omissions from, additions to or substitutions for, the original specifications : drawing....
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....d work is not entered in the said schedule of rates payment thereof shall be made by the Engineer-in-charge by determining the rates on analysis worked out from (a) the basic rates of materials and labour provided in the current schedule of rates or (b) the current market rates of materials and labour when even basic rates for the work are not available in the schedule. In case when such rates are determined on analysis by the Engineer-in-charge under (a) above, the stipulated percentage above or below schedule of rates as provided in the contract shall also apply and in case of rates worked out on analysis under (b) above regarding rates determined on analysis for any altered, additional or substituted work under this clause the decision o....
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....conclusions drawn by the Constitution Bench in the above judgment, in paragraph 20. Paragraph 20 is reproduced below: 20. Section 16 is said to be the recognition of the principle of Kompetenz-Kompetenz. The fact that the Arbitral Tribunal has the competence to rule on its own jurisdiction and to define the contours of its jurisdiction, only means that when such issues arise before it, the Tribunal can, and possibly, ought to decide them. This can happen when the parties have gone to the Arbitral Tribunal without recourse to Section 8 or 11 of the Act. But where the jurisdictional issues are decided under these sections, before a reference is made, Section 16 cannot be held to empower the Arbitral Tribunal to ignore the decision gi....
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.... 10. It was the submission of the learned Counsel for the Respondent, that proceedings could not have been entertained by the arbitrator Under Section 16 of Arbitration Act, in the present controversy, because by the orders of the High Court - dated 24.5.2002 and 26.9.2002 (extracted above), the appointment of the arbitrator was made, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. The factual position depicted hereinabove, as also, the orders referred to hereinabove, leave no room for doubt, that Justice (Retired) S.S. Ganguly, was actually appointed as an arbitrator by the High Court, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. That being the ....