Sujit Kumar Sinha, J.@mdashBy this application under Sections 5, 11, 12, 33 and 41 of the Arbitration Act 1940, the petitioner has sought various reliefs. The facts leading to the present application may briefly be stated.
2. The petitioner and the first respondent entered into a technical collaboration agreement dated 25th September, 1984 and its addendum dated 20th December, 1984. The said agreement contains an arbitration clause. The claims, disputes and/or controversies having arisen between them the same have been referred for adjudication by the arbitral tribunal appointed by the International Chamber of Commerce, the fifth respondent herein, in terms of the said arbitration clause.
3. The Chairman and members of the said arbitral tribunal ("the said tribunal" for short) are respectively the second, third and fourth respondents herein.
4. The arbitration proceedings before the said tribunal are now pending.
5. On 16th July, 1996 the petitioner made an application before the said tribunal u/s 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 as amended by the Amendment Act 1993 ("the said Act" for short) for suspension of further arbitration proceedings "till finalisation of the rehabilitation scheme" by the Board for Industrial and Financial Reconstruction ("the said BIFR" for short). The said BIFR by its order dated 20th January, 1985 has declared the petitioner as a "sick industrial company". The said application of the petitioner before the tribunal was opposed by the first respondent.
6. On 2lst July, 1996 the said tribunal communicated to the parties to the reference that by a majority decision it had taken the view that the arbitration proceedings cannot be suspended by reason of the provisions of Section 22 of the said Act and it accordingly rejected the said application of the petitioner. The reasons for its said decision are recorded in the minutes dated 31st July 1996 (annexure ''E'' to this application). The grievance of the petitioner is that by refusing to suspend the arbitration proceedings the said tribunal has acted in excess of jurisdiction and further that it is guilty of legal misconduct. The short question therefore that arises for determination on the present application is as to whether the arbitration proceedings before the said tribunal can remain stayed by reason of the provisions of Section 22 of the said Act.
7. It is convenient at this stage to set out the relevant provisions of Section 22 of the said Act :-
"22(1) Where in respect of an industrial company, an inquiry u/s 16 is pending or any scheme referred to u/s 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal u/s 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act 1956, (1 of 1956) or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advances granted to the industrial company shall lie or be proceeded with further, except with the consent of the board or, as the case may be, the appellate authority."
"22(3) Where an inquiry u/s 16 is pending or any scheme referred to in Section 17 is under preparation or during the period of consideration of any scheme u/s 18 or where any such scheme is sanctioned thereunder for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such the sick industrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that all or any of the rights, privileges and obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adaptations and in such a manner as may be specified by the Board: Provided that such'' declaration shall not be made for a period exceeding two years which may be extended by one year at a time so, however, that the total period shall not exceed seven years in the aggregate."
8. On a plain construction of the aforesaid provisions in my view it is clear that Sections 22(1) and 22(3) operate in different fields.
9. The first limb of sub-section (1) envisages a situation where a threat to any of the properties of an industrial company exists by any proceeding either for its winding-up or for levying execution or distress. The phrase "or the like" can only refer to any other proceeding which poses such threat. The second limb of the said sub-section refers to a proceeding where a threat to the dispossession of such property by the appointment of a receiver arises. The third limb of the said sub-section refers to the institution of a suit against an industrial company of the nature specified in the said sub-section.
10. It is quite clear therefore that the aforesaid sub-section (1) does not expressly or otherwise refer to arbitration proceedings. Such proceedings cannot be said to pose any threat. It is only when proceedings culminate in an award and a decree thereupon is passed in terms of such award and put to execution that a threat can be said to arise.
11. The sub-section (3) refers only to a sick industrial company. It is clear from the said sub-section that the said BIFR has power to suspend the operation of any award which obviously also means an arbitral award. The proviso to the said sub-section specifies the period for which the operation of such award can remain suspended.
12. It is quite clear that the arbitration proceedings cannot be stayed u/s 22(1) of the said Act.
13. The learned counsel for the petitioner however urged that the arbitration proceedings before the said tribunal should be stayed and in support of his submission relied upon the decision of Panigrahi J. in the case of ''Braithwatte & Co. Ltd. v. DTM Construction Pvt. Ltd. 1996 (1) Cal 181.
14. The learned Judge in his aforesaid decision seems to have taken a contrary view. I have however differed with the aforesaid view in my judgment dated 6th August, 1996 in Matter No. 3787 of 1994 (Larsen & Toubro Ltd. v. Jessop & Co. Ltd and Ors.) (unreported). In my said judgment, 1 have held with respect to the learned Judge that the view taken by him in the Braithwatte case (supra) Is of doubtful authority having regard to the express provisions of Section 22(1) of the said Act. The authority of the said decision of the learned Judge is further weakened by the fact that the attention of the learned Judge, does not appear to have been drawn to the provisions of Section 22(3) of the said Act. The decision of the learned Judge is therefore distinguishables.
15. The view that I have taken that arbitration proceedings do not fall within the mischief of Section 22(1) of the said Act seems to be also the view of the appellate authority for Industrial and Financial reconstruction as it appears from its order dated 31st July, 1996 in Appeal No. 90/96 in the case of ''Modi Champion Ltd. v. BIFR and Ors." The appellate authority has exhaustively dealt with the Braithwatte case (supra).
16. The learned counsel for the petitioner has further in support of his submission that the aforesaid decision in the Braithwatte case is binding on me relied upon the decision of the Supreme Court in the case of
17. On the other hand, the learned counsel for the first respondent has urged that the arbitration proceedings such as the reference before the said tribunal do not fall within the mischief of Section 22(1) of the said Act. He has also submitted that in a proper case such as the instant case it is permissible to differ with the view expressed by Panigrahi j. In the Braithwatte case (supra) and in support of his said submission he has cited the following decisions:-
(a) Virjibun Dass Moolji v. Bissesswar Lal Hargovind and Ors''. : 24 Cal 1032, where (at p. 1038 of the report) Sir Asutosh Mookerjee, Chief Justice presiding over the Division Bench observed as follows :-
"........But the position is indefensible on principle that although a Judge may feel absolutely convinced that the decision produced before him is erroneous in law, he is still bound to decide against his own opinion. To take such a view is to hold that the Judge may be reduced to an automaton by the production of an earlier judgment............."
b) ''Bharat Process & Mechanical Engineers Limited Assistants Apprentice and Ors. v. Bharat Process & Mechanical Engineers Limited and Ors.'' 1978(1) Cal L J 157, where U.C. Banerjee J. (at p. 167 of the report) observed as follows :-
"On the above enunciation of law as noted above in the United Kingdom, it is, therefore, seen that it cannot be termed to be a rigid law to follow the decision in the previous case absolutely, though for the reasons as noted above normally the Courts ought to follow the previous decision. But where it is found apparently that the point was not urged in the great detail would the court be justified in refusing to entertain an application or to go into the merits of the matter simply because of the fact that another learned Judge has dealt with the matter and decided against the writ petitioner? In my view, interest of justice would not subserve in the event of such an absolute requirement."
18. The principle underlying the aforesaid decisions seems to me to be that where two plausible views are possible, the earlier view taken by one learned Judge should be followed by another learned Judge and if the latter takes the alternative view then he should refer the matter to a larger Bench for decision. But where only one plausible view is possible or where the matters in controversy have been argued in great detail then it is open for a learned Judge to differ with the earlier view expressed by another learned Judge.
19. Further and in any view of the matter and as stated hereinabove the provisions of Section 22(3) of the said Act were not considered in the Braithwatte case (supra) and as such the same is distinguishable.
For the foregoing reasons I hold that the arbitration proceedings cannot be stayed or remain suspended by reasons of the provisions of Section 22(1) of the said Act.
The application is accordingly dismissed, but having regard to the facts and circumstances of this case there will be no Order as to costs.
