Order
1. Heard learned advocates on both sides.
2. All objections raised by the non-applicants in the counter can be gone into by the Arbitral Tribunal under Section 16 of the Arbitration Act, 1996. I do not wish to express any opinion on those arguments. In this connection in the case of Secur Industries Ltd. v. Godrej & Boyce Mfg. Co. Ltd. (2004) 3 SCC 447, this Court has taken the view that Section 16(1) of the Arbitration Act, 1996 opens with the words “the Arbitral Tribunal may rule on its own jurisdiction….” Therefore, the Tribunal's authority under Section 16 is not confined to the width of its jurisdiction but it goes to the very root of the jurisdiction. In view of the aforestated judgment of this Court, all objections with regard to validity and existence of the arbitration agreement can be gone into by the Arbitral Tribunal under Section 16 of the said Act, 1996.
3. Today when the matter reached hearing, learned counsel appearing on behalf of the non-applicant states that they have nominated Mr Justice M.L Pendse (Retired) as their arbitrator. In this connection it may be stated that vide letter dated 13-8-2003 the applicants herein had nominated Mr Justice Arvind Sawant (Retired) as the sole arbitrator and had called upon the non-applicant herein to give concurrence within 30 days. By the same letter, the non-applicants were informed that the applicants had no objection to the matter being referred to an Arbitral Tribunal of three arbitrators, in which event Mr Justice Arvind Sawant (Retired) be treated as appointed by them. Mr Rawal submits that in view of the arbitration agreement, in the instant case, the disputes and differences can be referred to only the sole arbitrator and not to an Arbitral Tribunal of three arbitrators. Per contra, learned counsel for the non-applicant invited my attention to the letter dated 13-8-2003 addressed by the applicants, the relevant portion of which reads as under:
“In the event you are not agreeable to the appointment of Mr Justice Arvind Sawant (Retd.) as the sole arbitrator and wish to refer the matter for adjudication to an Arbitral Tribunal consisting of three arbitrators, we shall have no objection to the same. In that event, Mr Justice Arvind Sawant (Retd.) be treated as the arbitrator appointed by us and you may nominate your arbitrator within 30 days from the date of receipt of this letter. Needless to state that both the arbitrators shall then appoint a presiding arbitrator.”
4. It is submitted on behalf of the non-applicant that in view of the aforestated letter dated 13-8-2003, it is not open to the applicant to raise the aforestated controversy on the constitution of the Arbitral Tribunal.
5. For the aforestated reasons, it is not necessary to go into the aforestated contentions. As held, hereinabove, all the aforestated objections regarding validity and existence of the arbitration agreement coupled with the objection as to the constitution of the Arbitral Tribunal can be gone into by the arbitrators.
6. Accordingly, Hon'ble Mr Justice M.L Pendse (Retired) and Mr Justice Arvind Sawant (Retired) are appointed as arbitrators to decide all disputes and differences between the parties.
7. Learned arbitrators may fix their own terms and conditions as to the remuneration. As far as fixing of date of hearing is concerned, liberty is given to the parties to approach the arbitrators, who will decide the due date according to their convenience.
8. The arbitration petition is accordingly disposed of.