Petition U/S 11 A&C Act For Constitution Of Arbitral Tribunal Cannot Be Recognised As Application Made To A Court: Delhi HC
The Delhi High Court reiterated that a petition under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act) for the constitution of an Arbitral Tribunal cannot be recognised as an application made to a Court.
The Court was deciding a writ petition against the order of the District Judge which had principally held that Section 34 petition under A&C Act would not be maintainable before the concerned Commercial Court.
A Division Bench of Justice Yashwant Varma and Justice Ravinder Dudeja observed, “It is thus manifest that the District Judge has clearly taken an erroneous view in holding that a petition under Section 11 is one made to a court and which would consequently attract Section 42 of the Act. As has been unequivocally held by the Supreme Court, a petition under Section 11 for the constitution of an arbitral tribunal cannot be recognised as an application made to a court.”
Advocate Angad Mehta represented the petitioner while Advocate Manank Grover represented the respondent and Advocate Amit George was the Amicus Curiae.
In this case, the petitioner challenged the order of the District Judge. The opinion rested on the District Judge construing Section 42 of A&C Act as mandating the Section 34 petition being liable to be instituted before the High Court by virtue of the fact that on an earlier occasion, a Section 11(6) petition was preferred before the High Court. The District Judge thus took the view that since the Section 11 petition would amount to a prior application made to a court, it would be that court alone which could have been petitioned for setting aside the Award.
When the writ petition was initially considered, a doubt was expressed by the Court as to whether a petition under Article 227 of the Constitution would be maintainable. The initial reservation was based on the Court doubting the maintainability of the writ petition bearing in mind the remedy which Section 37 constructs.
The High Court in the above context of the case, noted, “The issue of whether a Section 11 petition would fall within the ambit of Section 42 is no longer res integra. … The provisions of Section 42 would consequently be inapplicable.”
The Court further said that, it is manifest that the District Judge clearly erred in returning the petition for presentation before the High Court and that too on a wholly unsustainable construction of Section 42 and that error, if not corrected, would clearly result in manifest injustice and clearly merits the legal position which would flow from Section 42 being clearly enunciated.
“In view of the aforesaid, we allow the instant writ petition and set aside the order of the District Judge dated 22 August 2023.The Section 34 petition shall consequently stand revived on the board of the concerned Commercial Court to be heard afresh and bearing in mind the observations made hereinabove”, it concluded.
Accordingly, the High Court allowed the petition and set aside the impugned order.
Cause Title- CP Rama Rao Sole Proprietor v. National Highways Authority of India (Neutral Citation: 2024:DHC:8131-DB)
Appearance:
Petitioner: Advocates Angad Mehta, Rupin Bahl, and Ansh.
Respondent: Advocates Manank Grover, Pratibha Vyas, Amicus Curiae Amit George, Advocates Rishabh Dheer, Arkaneil Bhaumik, and Dushyant Kishan Kaul.
