Power Exercised by the Chief Justice of High Court or of Supreme Court of India – Under section 11(6) of the Act – Nature – Scope – Delegation of Power
S.B.P. & Co. v. Patel Engineering Ltd.,
AIR 2006 SC 450: (2005) 8 SCC 618
1. The power exercised by the Chief Justice of the High Court or the Chief Justice of India under section 11(6) of the Act, is not an administrative power. It is a judicial power.
2. The power under section 11(6) of the Act, in its entirety, could be delegated, by the Chief Justice of the High Court only to another judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court.
3. In case of designation of a Judge of the High Court or of the Supreme Court, the power that is exercised by the designated judge would be that of the Chief Justice as conferred by the statute.
4. The Chief Justice or the designated judge will have the right to decide the preliminary aspects as indicated in the earlier part of this judgment. These will be, his own jurisdiction, to entertain the request, the existence of a valid arbitration agreement, the existence or otherwise of a live claim, the existence of the condition for the exercise of his power and on the qualifications of the arbitrator or arbitrators. The Chief Justice or the judge designated would be entitled to seek the opinion of an institution in the matter of nominating an arbitrator qualified in terms of section 11(8) of the Act, if the need arises but the order appointing the arbitrator could only be that of the Chief Justice or the judge designate.
5. Designation of a district judge as the authority under section 11(6) of the Act by the Chief Justice of the High Court is not warranted on the scheme of the Act.
6. Once the matter reaches the arbitral tribunal or the sole arbitrator, the High Court would not interfere with orders passed by the arbitrator or the arbitral tribunal during the course of the arbitration proceedings and the parties could approach the Court only in terms of section 37 of the Act, or in terms of
section 34 of the Act.
7. Since an order passed by the Chief Justice of the High Court or by the designated judge of that court is a judicial order, an appeal will lie against that order only under article 136 of the Constitution of India to the Supreme Court.
8. There can be no appeal against an order of the Chief Justice of India or a Judge of the Supreme Court designated by him while entertaining an application under section 11(6) of the Act.
9. In a case where an arbitral tribunal has been constituted by the parties without having recourse to section 11(6) of the Act, the arbitral tribunal will have the jurisdiction to decide all matters as contemplated by section 16 of the Act.
10. Since all were guided by the decision of this Court in Konkan Railway Corpn. Ltd. v. Rani Construction Pvt. Ltd., (2000) 8 SCC 159 and orders under section 11(6) of the Act have been made based on the position adopted in that decision, we clarify that appointments of arbitrators or arbitral tribunals thus far made, are to be treated as valid, all objections being left to be decided under section 16 of the Act. As and from this date, the position as adopted in this judgment will govern even pending applications under section 11(6) of the Act.
11. Where District Judges had been designated by the Chief Justice of the High Court under section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the concerned High Court or a Judge of that court designated by the Chief Justice.
12. The decision in Konkan Railway Corpn. Ltd. v. Rani Construction Pvt. Ltd., (2000) 8 SCC 159 is overruled.
Source: M A Rashid