Case: Arasmeta Captive Power Co. Pvt. Ltd &amp; An Vs. Lafarge India P. Ltd

controversy when raised pertaining to arbitrability of the disputes. Or to express an opinion on excepted matters. Such an inference by syllogistic process is likely to usher in catastrophe in jurisprudence developed in this field. We are disposed to think so as it is not apposite to pick up a line from here and there from the judgment or to choose one observation from here or there for raising it to the status of “the ratio decidendi”. That is most likely to pave one on the path of danger and it is to be scrupulously avoided. The propositions set out in SBP & Co. (supra), in our opinion, have been correctly understood by the two-Judge Bench in Boghara Polyfab Private Limited (supra) and the same have been appositely approved by the three-Judge Bench in Chloro Controls India Private Limited (supra) and we respectfully concur with the same. We find no substance in the submission that the said decisions require reconsideration, for certain observations made in SBP & Co. (supra), were not noticed. We may hasten to add that the three-Judge Bench has been satisfied that the ratio decidendi of the judgment in SBP & Co. (supra) is really inhered in paragraph 39 of the judgment. 38. Before parting with this part of our ratiocination we may profitably reproduce the following words of Lord Denning which have become locus classicus: - “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.” 39. The aforesaid passage has been referred to in Amrit Lal Machanda and another (supra). 40. We will be failing in our duty if we do not take note of another decision in Booz Allen and Hamilton Inc. v. SBI Home Finance Limited and others [(2011) 5 SCC 532] on which Mr. Ranjit Kumar has heavily relied upon. He has drawn our attention to paragraph 34 where the Court has dealt with the meaning of the term “arbitrability” and stated that arbitrability has different meanings in different contexts. The Court enumerated three facets which relate to the jurisdiction of the Arbitral Tribunal. In sub-para (ii) of the said paragraph it has been stated that one facet of arbitrability is whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the “excepted matters” excluded from the purview of the arbitration agreement. On a careful reading of the said judgment we find that the learned Judges have referred to paragraph 19 of SBP & Co. (supra) and thereafter referred to Section 8 of the Act and opined what the judicial authority should decide. Thereafter the Court proceeded to deal with nature and scope of the issues arising for consideration in an application under Section 11 of the Act for appointment of the arbitrator and, in that context, it opined thus: - “While considering an application under Section 11 of the Act, the Chief Justice or his designate would not embark upon an examination of the issue of “arbitrability” or appropriateness of adjudication by a private forum, once he finds that there was an arbitration agreement between or among the parties, and would leave the issue of arbitrability for the decision of the Arbitral Tribunal. If the arbitrator wrongly holds that the dispute is arbitrable, the aggrieved party will have to challenge the award by filing an application under Section 34 of the Act, relying upon sub-section (2)(b)(i) of that section.” 41. The said ruling is absolutely in consonance with the principle laid down in SBP & Co. (supra). The meaning given to arbitrability thereafter has been restricted to the adjudication under Section 8 and not under Section 11 of the Act. Thus, the reliance on the said decision further reflects how the court has consistently understood the principles laid down in SBP & Co. (supra). 42. In view of our foregoing analysis we sum up our conclusions as follows: - i) The decisions rendered in Boghara Polyfab Private Limited (supra) and Chloro Controls India Private Limited (supra) are in accord with the principles of law stated in SBP & Co. (supra).ii) The designated Judge, as perceived from the impugned order, while dealing with an application under Section 11(6) of the Act, on an issue raised with regard to the excepted matters, was not justified in addressing the same on merits whether it is a dispute relating to excepted matters under the agreement in question or not.iii) The designated Judge has fallen into error by opining that the disputes raised are not “billing disputes”, for the same should have been left to be adjudicated by the learned Arbitrator.iv) The part of the order impugned that reflects the expression of opinion by the designate of the Chief Justice on the merits of the disputes, being pregnable, deserves to be set aside and is hereby set aside. 43. In course of hearing we have been apprised that the learned Arbitrator has adjourned the matter to 13.12.2013 for filing counter affidavit/claim by the appellants and it has been submitted by Mr. Ranjit Kumar that it would not be possible for the appellants to file the counter affidavit/claim or objections to the claim by that date. Mr. Harish Salve, learned senior counsel appearing for the respondent, fairly stated that this Court may take note of the concession given by him that the learned Arbitrator should grant six weeks’ time commencing 13.12.2013 for filing the counter affidavit/counter claim/objections. In view of the concession given, the time stands extended. We have also been told that the learned Arbitrator has fixed the schedule for adjudication of the disputes. We would request the learned Arbitrator to re-schedule the dates as we have extended the time for filing of counter affidavit/claim by the appellants. 44.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]43. In course of hearing we have been apprised that the learned Arbitrator has adjourned the matter to 13.12.2013 for filing counter affidavit/claim by the appellants and it has been submitted by Mr. Ranjit Kumar that it would not be possible for the appellants to file the counter affidavit/claim or objections to the claim by that date. Mr. Harish Salve, learned senior counsel appearing for the respondent, fairly stated that this Court may take note of the concession given by him that the learned Arbitrator should grant sixtime commencing 13.12.2013 for filing the counter affidavit/counter claim/objections. In view of the concession given, the time stands extended. We have also been told that the learned Arbitrator has fixed the schedule for adjudication of the disputes. We would request the learned Arbitrator to re-schedule the dates as we have extended the time for filing of counter affidavit/claim by the appellants.