Holding

An order of a subordinate court designated under section 11 of the Arbitration and Conciliation Act, 1996, though final and judicial, is amenable to challenge by a writ petition under Article 227, and the remedy of an appeal under Article 136 is not exclusive.

Issues considered

Whether an order of a subordinate court designated under section 11 of the Arbitration and Conciliation Act, 1996 is amenable to writ jurisdiction under Article 227 of the Constitution.
Whether the decision in S.B.P. & Co. v. Patel Engineering Ltd. bars a writ petition against such an order, limiting the remedy to an appeal under Article 136.
Whether the absence of a statutory appeal provision makes the order final and thus only challengeable via a writ.

Legislation cited

Arbitration and Conciliation Act, 1996s. 11(10), s. 11(4), s. 11(5), s. 11(6), s. 11(7)
Constitution of Indias. Article 136, s. Article 227

Subjects

ArbitrationSection 11Writ jurisdictionArticle 227Article 136Finality of orderDesignateSupreme Court

Judgment

[2008] 12 S.C.R. 569

-,I
PUNJAB AGRO INDUSTRIES CORPN. LTD. A
v.
KEWAL SINGH DHILLON
(Civil Appeal No. 5226 of 2008)
AUGUST 25, 2008
B
•x [R.V. RAVEEND.RAN AND P. SATHASIVAM, JJ.]

Arbitration and Conciliation Act, 1996: s. 11 - Petition
under - Order of Civil Judge, designated by High Court,
rejecting the petition - Held: Can be challenged by filing writ
petition under Art. 227 of Constitution - Plea that order could
c
be challenged only by recourse to Article 136 not tenable -
Constitution of India, 1950 - Articles 136, 227.
Constitution of India, 1950: Article 136 - Scope and
ambit of. D
The question which arose for consideration in the
present appeal is whether the order of the Principal Civil
Judge, the designate of High Court rejecting the petition
under section 11 of Arbitration and Conciliation Act was
amenable to writ jurisdiction. · E
Allowing the appeal, the Court
HELD: 1. The Arbitration and Conciliation Act, 1996
does not provide for an appeal against the order of the
Chief Justice or his designate made under sub section F
...... (4) or sub-sections (5) and (6) of section 11. On the other ·
hand, sub-section (7) of section 11 makes it clear that a
decision of the designate under sub-section (4), .(5) or
(6) of section 11 is final. As no appeal was maintainable
against the order of the designate ·and as his order was
made final, the only course available to the appellant G
. -( was to challenge the order, even if it is a judicial order,
by a writ petition under Article 227 of the Constitution of
India. [Para 6] [573-E F]
569 H
'
.,., ·,
}

570 SUPREME COURT REPORTS [2008] 12 S.C.R. >-

A 2. Though the order under section 11 (4) is a judicial
y
order, having regard to section 11 (7) relating to finality
of such orders, and the absence of any provision for
appeal, the order of the Civil Judge was open to
challenge in a w'rit petition under Article 227 of the
...r
I

B Constitution. The decision in *SBP does not bar such a
writ petition. The observations of this Court in *SBP that j

against an order under section 11 of the Act, only an x
appeal under Article 136 of the Constitution would lie, is
with reference to orders made by the .Chief Justice of a
c High Court or by the designate Judge of that High Court.
The said observations do not apply to a subordinate
court functioning as Designate of the Chief Justice.
Article 136 is not intended to permit direct access to this
Court where other equally efficacious remedy is
available and the question involved is not of any· public
D
importance. This Court will riot ordinarily exercise its
\--
jurisdiction under Article 136, unless the appellant has
exhausted all other remedi_es open to him. Therefore the
contention that the order of the Civil Judge, Sr. Division r-
rejecting a petition under section 11 of the Act could
E only be challenged, by recourse to Article 136 is
untenable. The decision in *SBP did not affect the
maintainability of the writ petition filed by Appellant
before the High Court. [Para 8] [574-G H, 575-A-C]

F *S.B.P and Co.. v. Patel Engineering Ltd. (2005) 8 SCC
618 - relied on. l'·-~

Case law reference
(2005) 8 sec 618 relied on para 4, 8
;. G CIVIL APPELLATE JURISDICTION: Civil Appeal No.
5226 of 2008 )· ...
From the final Judgment and Order dated 0.5.09.2006
of the High Court of Punjab and Haryana at Chandigarh in
R.A. No. 230 of 2006 in CWP No. 9889 of 2002
H
PUNJAB AGRO INDUSTRIES CORPN. LTD. v. 571
KEWAL SINGH DHILLON [R.V.RAVEENDRAN, J.]
~ Shyam Divan, N.S. Boparai, Rishi Malhotra and Prem A
Malhotra for the Appellant.
V.K. Jhanji, Jyoti Mendiratta for the Respondent.
The Judgment of the Court was delivered by
R.V.RAVEENDRAN, J. 1. Leave granted. Heard the 8
I
:¥ learned counsel for parties.
2. The appellant entered into a collaboration agreement
dated 23. 7.1986 with the respondent for setting up of a project
through a company to be jointly promoted by them. Clause 36 c
of the agreement provided for reference of all disputes and
differences arising out of or in relation to the said agreement
to an arbitral tribunal consisting of three members that is one
to be appointed by each party and an umpire to be appointed
by the two arbitrators.
D
....,· 3. Certain disputes arose between the parties and the
appellant by notice dated 19.3.1997 appointed its arbitrator
and called upon the respondent to appoint his arbitrator. As
respondent failed to comply, the appellant filed a petition under
section 11 (4) of the Arbitration & Conciliation Act, 1996 ('Act' E
for short) on 13.6.1997 in the court of the Principal Civil Judge,
Senior Division, Chandigarh (a designate of the Chief Justice
of Punjab & Haryana High Court and hereinafter referred to
as the 'Designate').
4. The said Designate by order dated 16.2.2002 F
...-~ dismissed the petition holding that appointment of arbitrator
was not called for as the matter had already been decided by
the Board for Industrial and Financial Reconstruction (for short
'BIFR'). Being aggrieved, the appellant approached the High
Court in C.W.P. No. 9889 of 2002, for quashing the order of G
.- { the Designate and for appointment of an arbitrator in terms of
the agreement dated 23. 7.1986. A Division Bench of the High
Court by its order dated 7.7.2006 disposed of the said writ
petition by the following short order:
H
I'
I

572 SUPREME COURT REPORTS [2008] 12 S.C.R.

y
A "The Petitioner is aggrieved by rejection of application for
appointment of arbitrator under Section 11 (4) of Arbitration
and Conciliation Act, 1996.
Learned Counsel for the Respondent raises a preliminary
objection that Writ Petition is not maintainable in view of r
8 judgment of Seven Judges of the Hon'ble Supreme Court in
I
S.B.P & Co. Vs. Patel Engineering Ltd. - 2005 (8) SCC 618 'j;
wherein it has been held that power of deciding an application
for appointment of an arbitrator is judicial power and is not
amenable to writ jurisdiction.
c After hearing learned counsel for the parties, we uphold the
preliminary objection and dismiss the Writ Petition. It is made
clear that this will not debar the Petitioner from taking such
other remedy as may be available under the law."
The said decision is challenged in this appeal by special
D leave, on the following grounds:
').--
(a) The order of the High Court is a non speaking order and
it upholds the preliminary objection of the respondent
without assigning any reason. ""'
E (b) A writ petition under Article 227 was maintainable against
the order of the ~ivil Judge, Senior Division (designate
of the Chief Justice) and the High Court was wrong .in
assuming that the writ petition was not maintainable in
view of the decision of this Court in SBP
F 5. Before considering the contentions raised, we may
-,
usefully refer to the following-relevant provisions of section 11
of the said Act :
"(4) If the appointment procedure in sub-section (3) applies and-

G (a) a party fails to appoint an arbitrator within thirty days
from the receipt of a request to do so from the ·other
party; or J· ~

(b) the two appointed arbitrators fail to agree on the third
arbitrator within thirty days from the date of their
H appointment,
PUNJAB AGRO INDUSTRIES CORPN. LTD. v. 573
KEWAL SINGH DHILLON [R.V.RAVEENDRAN, J.]
'f the appointment shall be made, upon request of a party, A
by the Chief justice or any person or institution
designated by him.
xx xx
(7) A decision on a matter entrusted by sub-section (4) or 8
l
sub- section (5) or sub-section (6) to the Chief Justice or the
x person or institution designated by him is final.
xx xx
(10) The Chief justice may make such scheme as he may
deem appropriate for dealing with matters entrusted by sub:- c
section (4) or sub-section (5) or sub-section (6) to him."
The Chief Justice of High Court of Punjab & Haryana in
exercise of his power under sub-section (10) of section 11 of
the Act made a scheme under which the Civil Judge, Senior D
'-<!' Division, Chandigarh, was designated to deal with applications
under sub-sections (4) to (6) of section 11 of the Act.
6. The Act does not provide for an appeal against the
order of the Chief Justice or his designate made under sub
section (4) or sub-sections (5) and (6) of section 11. On the E
other hand, sub-section (7) of section 11 makes it clear that
a decision of the designate under sub-section (4), (5) or (6)
of section 11 is final. As no appeal was maintainable against
the order of the designate and as his order was made final,
the only course available to the appellant was to challenge the F
,.. '\ order, even if it is a judicial order, by a writ petition under
Article 227 of the Constitution of India.
7. The respondent contended that having regard to the
decision in SBP, the remedy of the appellant was to file an
appeal by seeking special leave of this Court under Article G
~ 136 of the Constitution and not by way of a writ petition under
Article 227 of the Constitution of _India, and the High Court
was therefore justified in rejecting the writ petition as not
maintainable. In SBP, decided on 26.10.2005, this Court while
dealing with the scope of section 11, inter alia, held : H
l
'

574 SUPREME COURT REPORTS [2008] 12 S.C.R.

A. "(a) The power exercised by the Chief Justice of the High
Court under section 11 (6) of the Act is not administrative
power but judicial power.
(b) The power under section 11 (6) of the Act, in its entirety,
could be delegated by the Chief Justice of a High Court
B only to another Judge of that High Court.
•
)<
(c) As the order passed by the Chief Justice of the High
Court or the designated Judge of the High Court under
section 11 of the Act is a judicial order, an appeal will lie
against such order only under Article 136 of the
c Constitution of India, to the Supreme Court of India.
(d) Designa,tion of a District Judge as the authority under
section 11 (6) of the Act by the Chief Justice of the High
Court is not warranted under the scheme of the Act.
Where a District Judges had been designated by the
D Chief Justice of the High Court under section 11 (6) of
the Act, the orders made by them till 26.10.2005 will be
treated as valid; but applications, if any, pending before
them as on that date will stand transferred, t~ be dealt ~
with by the Chief Justice of the High Court concerned or
E a Judge of that High Court designated by the Chief
Justice.
It is evident from the said decision that reference to
section 11 (6) of the Act includes reference to section 11 (4) of
the Act and reference to a District Judge as designate, will
F also include reference to Civil Judge, Senior Division, as
designate.
8. We have already noticed that though the order under
section 11(4) is a judicial order, having regard to section 1117)
relc,iting to finality of such orders, and the absence of a'ny
G provision for appeal, the order of the Civil Judge was open to
challenge in a writ petition under Article 227 of the Constitution.
The decision in SBP does not bar such a writ petition. The
observations of this Court in SBP that against an order under
· section 11 of the Act, only an appeal under Article 136 of the
·H
PUNJAB AGRO INDUSTRIES CORPN. LTD. v. 575
KEWAL SINGH DHILLON [R.V.RAVEENDRAN, J.]

Constitution would lie, is with reference to orders made by the A
Chief Justice of a High Court or by the designate Judge of
that High Court. The said observations do not apply to a
subordinate court functioning as Designate of the Chief
Justice. This Court has repeatedly stressed that Article 136 is
not intended to permit direct access to this Court where other B
I
x equally efficacious remedy is available and the question
involved is not of any public importance; and that this Court
will not ordinarily exercise its jurisdiction under Article 136,
unless the appellant has exhausted all other remedies open
to him. Therefore the contention that the order of the Civil C
Judge, Sr. Division rejecting a petition under section 11 of the
Act could only be challenged, by recourse to Article 136 is
untenable. The decision in SBP did not affect the maintainability
of the writ petition filed by Appellant before the High Court.
9. We therefore allow this appeal and set aside the order D
of the High Court.· As a consequence, Civil Writ Petition
No.9889 of 2002 shall stand restored to the file, and the High
Court is requested to dispose it of in accordance with law.
D.G. Appeal allowed.
E