IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 6263 of 2006 Date of decision : May 19, 2009 Union of India Petitioner Versus Sham Sunder Respondent CORAM : HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Puneet Jindal, Advocate with Mr. Ashutosh Gupta, Advocate for the petitioner A.N. JINDAL, J. (ORAL) The petitioner has challenged the order dated 8.4.2006 passed by District Judge, Gurdaspur, accepting the application under Sections 7 and 8 of the Arbitration and Conciliation Act, 1996 (herein referred as the Act) directing the respondent to appoint Arbitrator within two months. While assailing the validity of the aforesaid order, the petitioner has urged that the application under Section 8 of the Act is maintainable only in a pending suit. However, independent application for appointment of the Arbitrator could have been filed under Section 11(6) of the Act before the Hon'ble Chief Justice and as such no application having been filed by the respondent except in the aforesaid circumstances, is not maintainable. Arguments heard. Admittedly, no suit was pending when the District Judge passed an order for appointment of Arbitrator. Section 8 can be pressed into service only if any matter is pending before a judicial authority. Section 8 of the Act reads as under:- “(1) A judicial authority before which an action is brought C.R. No. 6263 of 2006 2 in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.” Now coming to the other question whether the District Judge, Gurdaspur, could appoint an Arbitrator under Section 11(6) of the Act. The matter is no more res integra in view of the Apex Court judgment SBP & Co. versus Patel Engineering Ltd. and another (2005) 8 Supreme Court Cases 618, where it was observed that District Judge did not have any authority to appoint the arbitrator as the power vested only with Hon'ble the Chief Justice of the High Court which could be delegated to any other Judge of the High Court. The Apex Court in paras No. 47(i), (ii) and (xi) has observed as under:- “(i) The power exercised by the Chief Justice of the High Court or the Chief Justice of India under Section 11 (6) of the Act is not an administrative power. It is a C.R. No. 6263 of 2006 3 judicial power. (ii) The power under Section 11(6) of the Act in its entirety could be delegated, by the Chief Justice of the High Court only to another Judge of that Court and by the Chief Justice of India to another Judge of the Supreme Court. xx xx xx xx xx (xi) Where District Judges had been designated by the Chief Justice of the High Court under Section 11(6) of the Act, the appointment orders thus far made by them will be treated as valid; but applications if any pending before them as on this date will stand transferred, to be dealt with by the Chief Justice of the High Court concerned or a Judge of that Court designated by the Chief Justice.” Thus, the position of law as referred to above, is quite explicit when a Constitution Bench of Apex Court has opined that the power exercised under Section 11(6) of the Act is not administrative but judicial and its delegation by Hon'ble the Chief Justice of the High Court could be only to a brother Judge of the same Court. The judgment of Apex Court is dated 26.10.2005. However, still the impugned order was passed on 8.4.2006 by the District Judge, Gurdaspur exercising the power under Section 11 of the Act, which in fact did not vest in him on the date. It is unfortunate that the judgment of Constitution Bench of Apex Court was neither noticed by C.R. No. 6263 of 2006 4 the District Judge nor it was brought to his notice by either of the parties which resulted into the avoidable error. Once it is found that District Judge did not have any jurisdiction to pass the order on the date, there is no other option but to set aside the same and restore status quanti. The case shall now be dealt with in terms of law laid down by Apex Court in SBP Company's case (supra). The revision is disposed of accordingly. (A.N.JINDAL) 19.05.2009 JUDGE reena