Mr. Rajesh H. Shukla, J.(Oral) - Both these petitions are filed challenging the order passed by the Arbitrator under the provisions of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ''Arbitration Act'') as well as under Article 226 and 227 of the Constitution on the grounds stated in detail in the memo of petitions as both the petitions are cross petitions.
2. Special Civil Application No. 12993 of 2016 is filed by the petitioner, original respondent No. 1, for the prayers, inter alia, that appropriate writ, order or direction may be issued for quashing and setting aside the impugned order passed by the Arbitrator at Annexure-J dated 11.4.2016. It has been further prayed that appropriate writ, order or direction may be issued to respondent No. 1 to produce and supply copies of the documents, papers, records before the Hon''ble arbitral tribunal as stated vide application dated 10.12.2015.
3. Similarly, Special Civil Application No. 12834 of 2016 is filed by the petitioner, original respondent No. 2, for the prayers, inter alia, that appropriate writ, order or direction may be issued for quashing and setting aside the impugned order dated 11.4.2016 at Annexure-A passed by respondent No. 3 Arbitrator and also for similar directions on the same grounds in another petition for supply of the records and documents.
4. The facts of the case, briefly summarized, are as follows:
4.1. A Joint Venture Agreement (for short ''JVA'') dated 20.2.2001 was entered into and executed between the petitioner in SCA 12993 of 2016 and respondents Nos. 1 & 2. This JVA was between the petitioner company and respondents Nos. 1 and 2 in respect of the contract to be awarded by National Highways Authority of India (for short ''NHAI'') for widening of four lanes and strengthening of the existing two lane carriage way of Udaipur-Ratanpur-Gandhinagar. As per the JVA the petitioner company and respondents Nos. 1 and 2 are recognised as the performing parties of the joint venture and they had decided to distribute the profit arising out of the joint venture business in the proportion of 50:25:25. Respondent No. 1 in SCA No. 12993 of 2016, Backbone Projects Ltd., was the lead company. Clause 5(a) of the JVA provides the percentage in which the profit and loss is to be distributed. However, there was no apportionment of the work among the parties and clause 15 of the JVA provides for settlement of all outstanding obligations of liabilities of the joint venture to be decided in the manner provided in this agreement.
4.2. It appears that respondent No.1 which was designated as the lead company in the joint venture had a statement of claim filed before the Arbitral Tribunal and the amount received from NHAI was subject to the final account for the work carried out which was to be shared among the parties as stated in the JVA. There arose some differences with regard to the share of distribution ratio leading to arbitration proceedings and the amount of award from NHAI was deposited in the bank account. However, as there was some disagreement on this issue of distribution of share, ultimately, led to the arbitration where one expert opinion was also taken into account and thereafter the petitioner informed respondents Nos. 1 and 2 about the appointment of Shri BJ Parmar as an arbitrator as per the clause in the JVA and therefore respondent No. 1 preferred an arbitration petition before the High Court being IAAP No. 59 of 2013 praying for appointment of an arbitrator and vide the order passed by the High Court, the sole Arbitrator (M.S. Parikh, J.) has been appointed.
4.3. Pending the proceedings before the Arbitrator, the issue was raised for filing an application by the petitioner in SCA 10993 of 2016 regarding supply of documents by respondent No. 1, Backbone Projects Ltd. After considering the reply and on the basis of the material the Hon''ble Arbitrator passed an order below Application exh. 20 & 21 that the applications are filed and they are premature.
4.4. Similarly, the petitioner in SCA 12834 of 2016 which is also one of the parties to that agreement had given similar application before the sole Arbitrator and therefore the sole Arbitrator as stated above passed an order below Application exh. 20 & 21 which are challenged as the impugned order in both the aforesaid petitions.
5. Heard learned counsel Shri AL Shah appearing with learned advocate Shri AB Munshi for the petitioner in SCA 12993 of 2016.
6. Learned counsel Shri Shah referred to section 11 of the Arbitration Act and pointedly referred to section 11(6) and section 11(7). He submitted that as provided in section 11(6) it has referred to making of an application. He submitted that the Arbitrator has failed to appreciate this aspect that unless the material and the documents are made available, it may not be properly assisted by the parties and would also be denied the opportunity to put forward their case. He pointedly referred to the application and submitted that the application was given to the Arbitrator that the other side may be called upon to comply with such requirement of supplying the material on the basis of which the proceedings could be conducted before the Arbitrator. He submitted that non-supply of any such material would amount to denial of an opportunity.
7. Learned counsel Shri Shah, therefore, submitted that it is required to be considered whether the High Court can exercise power or superintendence under Article 227 of the Constitution of India over the arbitral tribunal established under the Act. He submitted that unless there is an amendment in the Constitution, the powers and the jurisdiction of the High Court under Article 226 and 227 cannot be curtailed as such powers of superintendence are exercised in the interest of justice to do justice between the parties. He submitted that if the interpretation which has been sought to be put that in view of the statutory provision no such application could be entertained by the Arbitrator and any grievance against any interim order passed by the Arbitrator or arbitral tribunal cannot be challenged by way of a petition under Article 227 and it can be challenged at the later stage under section 34 while challenging the award itself is misconceived. He submitted that if the arbitral tribunal exercises the jurisdiction contrary to the material or fails to consider the relevant material, such powers of superintendence is required to be exercised by the High Court and therefore this petition would be maintainable.
8. In support of his submission, learned counsel Shri Shah has referred to and relied upon the judgment in the case of M.L. Gupta and Associates v. H.P. Housing & Urban Development Authority, reported in 2011 SCC OnLine HP 3746. He pointedly referred to the observations made in paras 10 and 15.
"10. Article 136(1) and Article 227 of the Constitution of India make reference to tribunals in contradistinction to Courts. A Court in a sense is also a Tribunal constituted by the State to exercise the inherent judicial powers vested in a State. Tribunals also exercise judicial powers and decide matters brought before it judicially or quasi judicially. However, they are not identical to courts. A tribunal is also a seat of justice and in discharge of its function has come of the characteristics and trappings of a Court. They may compel witnesses to appear. They can administer oath. They are required to follow certain rules or procedure. The proceedings before them are bound to comply with the rules of natural justice. Even though tribunals are normally not bound by the technical rules of evidence but they must decide disputes on the basis of the evidence adduced before them and the decision must be in accordance with the settled principles of law.
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15. The grievance of the petitioner is that respondent No.3, who is an arbitrator in this case, has not taken any steps to dispose of the case and this Court exercising its power of superintendence should issue a direction to respondent No.3 to decide the petition within a specified period. The specific issue whether an arbitrary tribunal constituted under the Arbitration and Conciliation Act, 1996 is subject to the powers of superintendence of the High Court came up for consideration before the Calcutta High Court in Unik Accurates Pvt. Ltd. v. Sumedha Fiscal Services Ltd. 2000(Suppl.) Arb. LR 220 (Calcutta). A learned Single Judge of the Calcutta High Court after considering the relevant law on the subject held as follows:-
"17. At this stage, I am quite conscious that an Arbitrator under 1940 Act or an Arbitrator under Section 10A of the Industrial Disputes Act could not pass through the aforesaid tests in the eyes of the Apex Court. But in my view, the position of an arbitral Tribunal under the Act is quite different. Under the Act, an award, if not challenged by taking recourse to Section 34 and if consequently not set- aside, attains the character of decree without any further approval of the Court. Such was not the position of an award under 1940 Act. Thus, the statute, viz., the Act has empowered an arbitral Tribunal, an outside authority, to conclusively determine the controversy if referred to if by the parties and the State is lending its support to enforce such award through assistance of the Civil Court subject of course to the provision contained in Section 34 of the Act if availed of by the dissatisfied party.
18. But the most glaring provisions of the Act which manifest the intention of the State of delegate its inherent judicial function to an arbitral Tribunal are Section 17 of the Act, conferring right upon such Tribunal to take "any interim measures" before passing of the award and Section 37 of the Act, giving ''right of appeal'' against an order of Tribunal under Section 17 or accepting the plea referred to in Section 16(2) or Section 16(3) of the Act to a Court meaning a principal Civil Court of original jurisdiction in a District or High Court in exercise of its ordinary original jurisdiction in a case where the latter has jurisdiction to decide the subject matter of arbitration if the same has been the subject matter of a suit.
19. Bestowal of a power to pass "any interim measure" has a far reaching implication upon the rights of a citizen and that is why the Act has adequately protected the rights of the people by making provision of an appeal before the Court against any such order passed by the Tribunal.
20. The true nature of right of appeal, as pointed out by the Apex Court in the case of Sankar Ramchandra Abhyankar v. Krishnaji Dattatroya Bapat is one of entering a superior Tribunal and invoking its aid and interposition to redress the error of the Tribunal below. Two things, Gover, J. was of the view which are required to constitute appellate jurisdiction are the existence of superior and inferior Tribunal and the power of the former to review the decision of the latter. Moreover, the doctrine of merger immediately comes into play.
21. Therefore to confer an appellate power upon the Court against an order of the arbitral Tribunal means such Tribunal is under the supervision of the Principal Court of civil jurisdiction in a District or High Court, as the case may be and upon conclusion of the appeal, the initial order merges with the order of such Court. Now, the moment a principal Civil Court in a district disposes of such an appeal, the order of such Court becomes a ''case decided'' within the meaning of Section 115 of the Code of Civil Procedure and will be amenable to the revisional jurisdiction of High Court subject to the restriction imposed in Section 115 of the Code as no second appeal lies.
22. Thus, once it is established that an arbitral Tribunal is subject to the supervision of a principal Civil Court of original jurisdiction in a District or of High Court in exercise of ordinary original jurisdiction it will be preposterous to contend that such Tribunal does not come within the preview of Article 227 of the Constitution.
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26. Counsel for the parties could not place any decision where notwithstanding the provision of appeal before a principal Civil Court of original jurisdiction of High Court against an order passed by an authority, such authority has not been held to be Tribunal within the meaning of Article 136 or 227 of the Constitution particularly when an award passed by such authority has the force of a decree without approval of such award by a Court.
27. In view of my findings above I hold that an arbitral Tribunal under the Act is a Tribunal within the meaning of Article 227 of the Constitution as the Act has conferred upon such Tribunal inherent judicial power of the State."
9. Learned counsel Shri Shah therefore submitted that the arbitral tribunal would be amenable to the jurisdiction under Article 227 of the Constitution of India. He emphasised the observation :
"The High Court''s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India, and therefore abridgement by a Constitutional amendment is also very doubtful."
Learned counsel Shri Shah submitted that therefore it has been suggested by way of self-imposed restriction or discipline that it may be exercised with care and circumspection but it cannot be argued that no such petition under Article 227 challenging the order of the Arbitrator can be maintainable.
10. Learned counsel Shri Shah also referred to the judgment of the Hon''ble Apex Court reported in AIR 2006 SC 450 (Constitution Bench) in the case of M/s. S.B.P. and Co. v. M/s. Patel Engineering Ltd. and anr. and submitted that the judgment which is cited in support of the contention about the maintainability of the petition under Artifices 226 & 227 has to be considered while reading the judgment as a whole. He submitted that it is well-settled that the ratio has to be seen and after it is culled out it has to be considered in the facts of the case and not mere few sentences in isolation could be read. He submitted that the conclusions are summed up in para 46.
11. Learned counsel Shri S.N. Thakkar appearing for the petitioner in SCA No. 12834 of 2016 adopted the submissions made by learned counsel Shri AL Shah. However, he has also supplemented the submissions referring to the papers at length and submitted that if there is a gross error on the part of the Arbitrator, then, such a petition has to be entertained, otherwise it would amount to denial of any opportunity. He has emphasised that if necessary material or the details are not provided it may not be possible for the party to put forward its case. He submitted that it is not a case of counter claim but an opportunity to put forward the case in the arbitration proceedings so that the Arbitrator can come to the correct conclusion. He submitted that as the respondent No. 1 is having all the material pursuant to the JVA and if that is withheld proper facts may not be before the Arbitrator which would result in denial of opportunity and violation of the rules of natural justice. He emphasised that if such an issue goes to the root of the matter and if such application for the documents and the relevant material are not entertained, it would be an exercise in futility. He again submitted that it is not a counter claim and it may not be confused with such counter claim and it has to be considered in background of the fact that it was a joint venture where one of the parties having the relevant record and material which is now sought to be withheld in arbitration proceedings. he has strenuously submitted that unless the material is permitted to be brought on record of the arbitration proceedings, it may not help the Arbitrator to arrive at the conclusion. He submitted that it has a reference to the judgment of the Hon''ble Apex Court and section 5 of the Arbitration Act with regard to the fact that intervention by the judicial authority may not include exercise of discretionary power under the Constitution under Article 227. Learned counsel Shri Thakkar emphasised that such power or discretion cannot be curtailed without constitutional amendment or perhaps even constitutionally it could be made is doubtful. He, therefore, submitted that it has to be considered. In support of his submissions, he has referred to and relied upon the judgment of the Hon''ble Apex Court reported in AIR 1997 SC 1125 in the case of Chandra Kumar v. Union of India and ors. and submitted that this is also a Constitution Bench having made the observations in paras 79, 93 & 99. He, therefore, submitted that the present petition may be allowed.
12. Per contra, learned Sr. Counsel Shri Dhaval Dave appearing with learned advocate Shri Jigar Patel for respondent No. 1 submitted that the petition itself is not maintainable under Article 226 and 227 of the Constitution in view of the declaration of law made by the Hon''ble Apex Court in a judgment reported in AIR 2006 SC 450 in the case of M/s. S.B.P. & Co. v. Patel Engineering Ltd. and anr. He pointedly referred to the observations made in this judgment and also emphasised the observations made in para 44 and 45.
"44. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution of India. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible.
45. The object of minimising judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 of the Constitution of India or under Article 226 of the Constitution of India against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage."
13. Thus, it has been pressed into service to emphasise that once the arbitration has commenced in the arbitral tribunal, the parties have to wait until the award is pronounced subject to the right of appeal available to them under section 37 of the Act even at an earlier stage. He submitted that therefore it contemplates that such a petition would not be maintainable and if at all there is any gross error or grievance by the parties to the arbitration, recourse can be had under section 37 which provides for appeal. Learned Sr. Counsel Shri Dave therefore submitted that the provision is made in the statute that intervention at the interim stage is not made to achieve the ultimate object and purpose of the Arbitration Act. He therefore submitted that it would set at nought the very purpose or the idea by the legislature if the interpretation is made otherwise permitting such application to be made for challenging the order at the interim stage in exercise of discretion under Article 227.
14. Learned Sr. Counsel Shri Dave pointedly referred to section 5 which provides for "extent of judicial intervention". He submitted that it starts with a non-obstante clause and provides that no judicial authority shall intervene except what is provided. He submitted that this aspect has been considered in the Constitution Bench judgment of the Hon''ble Apex Court reported in AIR 2006 SC 450 in the case of M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd. and anr. He also submitted that the same view has been earlier taken by the Hon''ble Apex Court in a judgment reported in (2014) 7 SCC 255 in the case of Lalitkumar V. Sanghavi (dead) through LRs Neeta Lalito Kumar Sanghavi and anr. v. Dharamdas V. Sanghavi and ors. He emphasised the observations made in para 8 quoting from the earlier judgment of the Hon''ble Apex Court in the case of M/s. S.B.P. & Co. (supra). At the cost of repetition he emphasised the observation,
"...We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible."
15. Learned Sr. Counsel Shri Dave also referred to the judgment of this Hon''ble High Court (Coram: M.R. Shah, J.) reported in 2006 (1) GLH 523 in the case of Executive Engineer, Sardar Sarovar Narmada Nigam v. Bhaven Construction and anr. and submitted that the coordinate Bench of the High Court has also taken the same view that a petition under Article 226 and 227 against such an order passed by the arbitral tribunal is not maintainable and the only remedy is to wait till the award is passed by the sole arbitrator and to challenge the same under section 34 of the Arbitration Act. He submitted that in light of the guidelines laid down by the aforesaid pronouncements of the Hon''ble Apex Court, the petition may not be entertained. He also submitted that the underlying object of the Act for the speedy disposal of the proceedings is required to be considered and if intervention at the interim stage is permitted in exercise of jurisdiction under Article 226 and 227, it would stall the proceedings which would be contrary to the object which is sought to be achieved by the Arbitration Act. He emphasised that once having agreed and accepted with regard to the forum it may not be open to resort to other proceedings including a petition under Article 227 of the Constitution of India. He further submitted that in any case even while exercising jurisdiction under Article 227 in supervisory jurisdiction the High Court would be slow in interfering with the order passed by the subordinate court or the authority and unless there is a jurisdictional error it may not interfere exercising such discretion. Learned Sr. Counsel Shri Dave, therefore, submitted that the present petition may not be entertained.
16. In view of these rival submissions, it is required to be considered whether the present petitions deserve consideration.
17. As could be seen from the background of facts, the sole arbitrator has been appointed and the proceedings are pending. However, pending the proceedings the applications have been given on which the impugned order has been passed which has been assailed in the present petition. Therefore, the moot question is whether in light of the statutory provisions as well as the judgment of the Hon''ble Apex in the case of M/s. S.B.P. & Co. (supra) relied upon by Sr. Counsel Shri Dave for respondent No. 1 call for any interference in the order passed by the sole arbitrator.
18. Again, it has different facets including the scope of judicial review and also the scope of jurisdiction under Article 227 vis-a-vis the statutory provision in the Arbitration Act. There cannot be any quarrel on the basic issue with regard to the scope of judicial review and exercise of discretion under Article 227 of the Constitution of India. The concept of judicial review as well as the discretion under Article 227 of Constitution of India are considered to be basic features which cannot be restricted or taken away except by way of constitutional amendment which is again doubtful. Therefore, there is no gainsaying about the fact that there is no inherent lack of jurisdiction or exercise of discretion under Article 227. It is more a matter of propriety and self-imposed restriction rather than jurisdiction. Moreover, while deciding such issue it has to be considered keeping in mind the statement of objects and reasons of the Arbitration Act and the underlying basic idea for such an enactment which is aiming at speedy disposal of disputes between the parties through such mechanism of arbitration. Again, the scheme of the Arbitration Act refers to the procedure, mutual rights and obligations of the parties and also the powers and scope of the arbitrator while proceeding with arbitration. Thus, it is a self-contained code and it has been though provided that the provisions of Civil Procedure Code would be applicable it has laid down its own procedure and method for deciding the proceedings expeditiously.
19. It is in this background the provisions of section 11(6) and 11(7) are required to be considered. Though section 5 provides for "extent of judicial intervention" it would not include the intervention by the constitutional court in exercise of power or discretion under Article 226 or 227 of the Constitution of India. The language of section 5 which starts with nonobstante clause, has referred to "judicial authority" providing "no judicial authority shall intervene except where so provided in this Part." This would necessarily imply intervention by judicial authority and not the High Court or the Supreme Court exercising powers and jurisdiction under the constitutional provision. (emphasis supplied) At the same time, the reliance placed by learned Sr. Counsel Shri Dave on the observations made by the Hon''ble Apex Court in the judgment in the case of M/s. SBP & Co. (supra) with much emphasis is required to be considered. As stated above, the observations of the Hon''ble Apex Court has to be read in background and context of the facts or the statutory provisions which have been considered and the text of the judgment has to be read as a whole in context of the controversy or the issues involved. In the aforesaid judgment reference is made with regard to exercise of power by the Chief Justice under section 11(6) where it could be said to be a judicial power or administrative power which was focused. Therefore, while considering the observations which have been much emphasised by learned Sr. Counsel Shri Dave that there is no jurisdiction for the High Court under Article 227 to interfere at the interim stage in such arbitration proceedings in view of the provisions of section 5 of the Arbitration Act cannot be readily accepted. However, a close look at the judgment of the Hon''ble Apex Court with observation has to be considered as broad guideline suggesting for self-imposed restraint. In other words, it refers to self-restraint or propriety for exercise of power laying down broad guidelines rather than lack of inherent jurisdiction.
20. Thus, the Hon''ble Apex Court has laid down guidelines with regard to the approach in such matters considering the underlying object of the Arbitration Act regarding speedy disposal of the disputes between the parties in light of the scheme of the Act. These observations have been made by the Hon''ble Apex Court keeping in mind that when the parties to the arbitration proceedings have themselves agreed and accepted the forum for redressal or settlement of their dispute through arbitration, they would be estopped from wriggling out of the provisions of the Arbitration Act and the proceeding or the mechanism of the Arbitration Act. In other words, when parties themselves have elected and accepted a particular forum having the jurisdiction the procedure has to be regulated as provided in that particular forum created under the statute like the Arbitration Act. Therefore, even if the High Court in exercise of discretion under Article 227 may not be lacking in jurisdiction, but it would be a matter of propriety or self-restraint where the parties have selected a forum as well as the mechanism by which their dispute has to be resolved.
21. It is in this background the observations have to be considered as broad guideline that once the parties have resorted to arbitration proceedings they have to go through the same procedure of arbitration proceedings and cannot be permitted to scuttle the proceedings of arbitration by resorting to any such remedy or extraordinary discretion under Article 227 which would otherwise frustrate the very object and purpose of the Arbitration Act. An analogy can be made to the observations with regard to exercise of inherent power under section 151 of the Code of Civil Procedure where it is necessary in the interest of justice and wherein there is no specific provision. In other words, it is wellsettled that when there is a specific provision in the CPC the parties cannot resort to exercise of inherent jurisdiction under section 151 of CPC and the court also would not be justified in resorting to inherent jurisdiction under section 151 of CPC when there is a specific procedure or provision providing for the manner in which a particular issue could be dealt with.
22. Thus, once the parties having, on their own volition, selected the forum under the statute like arbitration proceedings under the Arbitration Act have to follow the same procedure and cannot have short-cut for resorting to the jurisdiction under Article 227 in the midst of the proceedings. If that is allowed, interjection at the intermediate stage of the proceedings will stall the proceedings frustrating the very object and purpose of the arbitration proceedings envisaged under the Arbitration Act.
23. Therefore, the submissions made by learned Sr. Counsel Shri Dave much emphasising on the observations made by the Hon''ble Apex Court in the judgment in the case of M/s. SBP & Co. (supra) has to be read in the context and background of the facts as well as the constitutional provisions underlying the object and purpose of the Arbitration Act and also the observations made by the Hon''ble Apex Court in its judgment in the case of Chandra Kumar v. Union of India and ors., reported in AIR 1997 SC 1125, making observations with regard to the same contentions with regard to whether the statutory provisions can restrict or curtail the scope of discretion under Article 226 by the High Court. It has been clearly observed :
"However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set up, been specifically entrusted with such an obligation."
It has been further observed referring to Article 323A and 323B under which the tribunal is set up :
"The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution."
24. Therefore, the moot question is whether the order of the sole arbitrator which has been assailed in the present petitions justify any interference. As could be seen from the provisions of the Arbitration Act, there is a specific provision like section 37 providing for the procedure before the award is made or finalised. Similarly, when the parties have themselves accepted a particular forum once the award is made it would be open for the party to challenge the award on all counts and therefore it could not be said that the party to the proceedings is denied any right of contesting. Section 29B refers to fast track procedure which is in tune with the scheme of the Arbitration Act and it prescribes the procedure which the parties may accept for early disposal of their dispute.
25. Therefore, the submissions which have been made by learned counsel Shri Shah as well as learned counsel Shri Thakkar cannot be accepted. The reference made to the observations particularly para 44 suggesting that even these observations in the judgments in the case of M/s. SBP & Co. (supra) read with the judgment in the case of L. Chandra Kumar (supra) does not take away the jurisdiction of the High Courts under Article 227 and therefore it would not mean that no order can be challenged at the interim stage has to be considered in background of the facts as discussed above. It is stated at the cost of repetition that it is not lack of jurisdiction but a propriety or a particular guideline with regard to the approach in such matters which the Hon''ble Apex Court has laid down for exercise of discretion under Article 227 suggesting self-restraint. Again, it is in the background of facts as stated above referring to the underlying basic philosophy of the Arbitration Act that the parties have selected a forum for the procedure under a particular statute and therefore are estopped from getting out of the same.
26. Moreover, a useful reference can also be made to the observations made by the Hon''ble Apex Court in another judgment in the case of Lalitkumar v. Sanghavi (supra) referring to the same issue with regard to exercise of discretion under Article 226 and 227 and the provisions of the Arbitration Act and again what has been observed is particular guidelines suggesting self-restraint which has been emphasised by learned Sr. counsel Shri Dave. The same view has also been expressed by a coordinate Bench of the High Court in a judgment in the case of Executive Engineer, Sardar Sarovar Narmada Nigam (supra).
27. It is in this background the order passed by the sole arbitrator cannot be said to be erroneous or having a jurisdictional error which may call for exercise of discretion under Article 227 of the Constitution of India in the present petitions assuming that there are no fetters on the exercise of discretion under Article 227.
28. Therefore, both the present petitions deserve to be dismissed and accordingly stand dismissed.
FURTHER ORDER
29. After the order was pronounced, learned advocate Advocate Shri B.P. Munshi and learned advocate Shri S.N. Thakkar for the petitioners have requested for stay of the operation of the order to enable the petitioners to approach the Hon''ble Apex Court.
30. However, learned Senior Counsel Shri D.C. Dave appearing with learned Advocate Shri Jigar M. Patel for the Respondent has strong objection contending that it is only delaying the arbitration proceedings and particularly when there is no interim order, no such stay of the operation of this order may be granted.
31. In the facts and circumstances, though the objection is there, the petitioners are seeking a remedy and therefore it would be in the fitness of things if stay of the operation of the order as prayed for is granted for a period of four weeks i.e. up to 18.10.2016.
