1 ORDER
SHEET APO No.75 of 2013 AP No.323 of 2005 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE TAPAS KUMAR HAZRA & DEVELOPMENT CONCERN Versus STATE OF WEST BENGAL & ORS BEFORE: The Hon'ble JUSTICE BANERJEE The Hon'ble JUSTICE DR.MRINAL KANTI CHAUDHURI Date :
25. h April, 2013.
Appearance: Ms.Sumita Mookherjee with Ms.Kumkum Das, ld.
Advocates for the appellant.
Mr.Sakya Sen, Mr.Arindam Mondal and Mr.Paritosh Sinha, ld.
Advocates for the respondent.
The Engineer, invited Public a tender Court :- Works Department, for construction The Superintending Western of a Circle (I) bridge.
The appellant became successful in the tender process.
The tender process was challenged by an unsuccessful tenderer in a writ petition.
The learned Single Judge passed an order of status quo in respect of the tender.
However, by the time the order was passed, the Superintending Engineer issued the work order.
However, no written contract could be executed due to the order of status quo.
According to the contractor, he was verbally asked to carry out the work that is denied by the State.
According to the State, there was no concluded contract.
Unless and until a contract was concluded, question of carrying out work did not arise.
The contractor raised a dispute and invoked the arbitration clause.
The State denied to send the dispute to arbitration, as according to them, there could be no arbitration clause in the agreement that was yet to be signed.
The learned Chief Justice allowed the application under section 11(6) of the Arbitration and Conciliation Act, 1996 and appointed a former Judge of this Court as Arbitrator.
The before Apex the State filed Court.
a The Special Apex Court Leave Petition dismissed the Special Leave Petition by observing, the State would be at liberty to take the plea of maintainability of the Arbitration in absence of an arbitration clause.
The Apex Court passed the order on May 2, 2003.
Immediately, the State filed Arbitration an application and Conciliation under Act, sectio”
16. of the challenging the authority of the Arbitrator.
The Arbitrator asked them to produce the tender document.
According to the Arbitrator, the State failed to disclose the tender document.
Hence, adveRs.inference should be drawn and as a corollary the claim was to be allowed.
We have gone through the Award.
The learned Arbitrator was of the view, once the tender documents were not disclosed, however, do Arbitrator adveRs.not on inference find the any issue should definite raised be drawn.
finding by the We, of the State.
The Arbitrator proceeded to award the sum that was claimed by the claimant without any discussion on merits that was the pre-requisite of the said Act of 1996.
Be that as it may, when one party raises a plea of maintainability of the arbitration raising an issue, there existed no arbitration clause that would go to the root of the matter and the Arbitrator must decide the issue.
In our view, the Arbitrator miserably failed to do so.
Ms.Mookherjee appearing for the appellant relies on the decision Naranbhai of Marghabhai the & Apex Ors Court versus in case Dhulabhai of Patel Galleabhari reported in AIR 199.SC 200.to contend, once a party would conceal a document to be in their possession and Court is precluded from looking into it, the defaulting party must suffer for the consequences.
Such proposition of law, in our view, is well settled and would need no further deliberation.
The learned Single Judge allowed the application for setting aside holding, the onus was upon the claimant to show there existed an arbitration clause.
In fact, the Apex Court gave the respondent liberty to raise such issue.
Once such preliminary issue was raised, it was obligatory on the part of the claimant to dispel the duty raised on that score.
Ms.Mookherjee would rely on the decision in the case of Sachindra Nath Chtterjee versus Sm.
Nilima Chatterjee reported in AIR 197.Calcutta 38 on the onus.
She would rely upon the Head Note C where the Division Bench held, “burden of proving benami is on person who alleges it – but where all relevant facts are before the Court, all that remains is what inference should be drawn from them and question of onus becomes academical”.We fail to appreciate how this paragraph would help us in resolving the present issue.
A party raises a dispute in a transaction and wants to have resolution of such dispute, through alternative dispute resolution mechanism by referring the dispute to arbitral Tribunal, hence it is incumbent upon such party, fiRs.to show convincingly their exists an arbitration clause.
Initially the idea was, an order passed under section 11 would be a mere administrative order to be passed by the learned Chief Justice.
Subsequently, idea was changed.
Even if it is an administrative order, the pre-requisite would be to satisfy the Court that there would exist an arbitration clause.
Unless and until such pre-requisite is fulfilled, the reference cannot be sustained.
In the instant case, the State did not seriously contest the proceeding before the learned Single Judge.
They belatedly approached the Apex Court.
The Apex Court condoned the delay and permitted them to raise such issue under section 16 of the Act.
They immediately raised such issue before the learned Arbitrator.
Hence it was incumbent upon the Arbitral Tribunal to fiRs.satisfy itself, it had jurisdiction to enter upon the reference.
The learned Arbitrator, in our view, miserably failed to do so, rather she avoided the issue.
Even if we take it for argument sake, the finding was correct, the Tribunal misconducted itself by not going into the merits of the claim and assigning no reason before awarding the sums that was a pre-requisite under the said Act of 1996.
Learned Judge rightly set aside the award that would not deserve any interference at the instance of the Court of appeal.
The appeal fails and is hereby dismissed without any order as to cost.
The cost is, however, made easy.
(BANERJEE, J.) (DR.MRINAL KANTI CHAUDHURI, J.) dg/