Delhi High Court
Railtel Corporation Of India Limited vs Primatel Fibcom Limited on 9 December, 2024
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 03rd December, 2024
Date of Decision: 09th December, 2024
+ ARB. A. (COMM.) 63/2024 & I.As. 46995-96/2024
RAILTEL CORPORATION OF INDIA LIMITED .....Petitioner
Through: Mr. Manish Vashisht, Sr. Advocate
with Mr. Alok Kumar Singh and Mr.
Vedansh Vashisht, Advocates
versus
PRIMATEL FIBCOM LIMITED ..... Respondent
Through: Mr. Rohit Gandhi, Mr. Adhish
Srivastva, Mr. Hargun Singh Kalra,
Ms. Akshita Nigam, Mr. Navdeep Jain
and Mr. Nirmit Bhalla, Advocates
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J:
1. The present appeal has been filed under Section 37(2)(a) of the
Arbitration and Conciliation Act, 1996 (‘the Act of 1996’) impugning the
‘procedural order no. 5’ dated 18.11.2024 (‘impugned order’) passed by the
learned Sole Arbitrator in Case Ref No. DIAC/8149/04-24.
2. In the impugned order the learned Sole Arbitrator dealt with two (2)
applications filed by the Appellant herein (i.e., respondent in the arbitral
proceedings) on 11.11.2024.
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2.1 The first application was filed by the Appellant praying for fixation of
a procedure and schedule to be followed by the parties. In this application, the
Appellant prayed for leading oral evidence and stated that the issues cannot
be decided on the basis of documents alone.
2.2 The second application was filed by the Appellant under Section 5 of
the Limitation Act, 1963 for condonation of delay in filing its Counter-Claim
and for taking on record the Counter-Claim filed along with the application.
2.3 The learned Sole Arbitrator disallowed the first application on the
ground that the timeline of the proceedings to be followed by the parties has
already been decided through various consent orders passed by him and that
no new procedure can be established at the stage of final hearing. The
rejection of the first application is not a subject matter of challenge in the
present appeal.
2.4 The second application has been dismissed by the learned Sole
Arbitrator on the ground that the Counter-Claim sought to be brought on
record is filed at a belated stage when the Statement of Claim (‘SOC’),
Statement of Defence (‘SOD’) and Rejoinder has already been filed and the
matter is listed for addressing final arguments. The operative portion of the
impugned order reads as under:
“1. Today the case was fixed for final arguments but Mr. Manish
Vashisht, Sr. Ld. Counsel for the respondent is not available.
However, he has sent his junior Mr. Jaivardhan Jeph, Advocate who
came late by half an hour.
2. The Ld. Counsel for the respondent Mr. Jaivardhan Jeph has
drawn the attention to respondent’s applications which were sent
only on email and no hard copy was supplied.
…
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6. The second application moved by the Ld. Counsel for the
respondent pertains to counter claim along with the prayer for
condonation of delay.
7. When the case is ripe for the final hearing after receiving the
Statement of Claim, Statement of Defence and Rejoinder, so this
belated application has no merit and dismissed.
8. With the consent of both the parties, case is adjourned to
10.12.2024 to 13.12.2024 at 2.00 p.m. till 5.30 p.m. on all the dates
physically at DIAC. On the request of Ld. Counsel for the
Respondent, the dates fixed for 19th and 20th November, 2024 are
hereby cancelled.”
(Emphasis supplied)
Brief facts leading to the initiation of the present proceedings
3. With the execution of the ‘definitive agreement’ dated 27.02.2018
between the Appellant and the Respondent herein the Respondent was
selected as a System Integrator and Implementation Partner under a back-to-
back payment structure with ‘M/S Raj COMP Info Services Limited (RISL)’
i.e., the end customer on behalf of the Appellant.
3.1 The said end customer raised issues with respect to the deficiencies in
the services rendered by the Respondent and consequently stopped payments
towards invoices raised by the Appellant.
3.2 Thereafter the Respondent invoked the arbitration agreement and
Dr. Justice Satish Chandra, former Judge of Allahabad High Court was
appointed as the Sole Arbitrator by this Court vide order dated 14.03.2024
passed in ARB.P. 364/2024.
3.3 The learned Sole Arbitrator passed ‘procedural order no. 1’ dated
13.05.2024 whereby with the consent of the parties the date of filing of SOC 1,
1
Statement of claim.
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SOD2/Counter Claim and Rejoinder was fixed as 15.06.2024, 14.07.2024 and
21.07.2024 respectively.
3.4 On the next date of hearing i.e., 30.07.2024 counsel for the Appellant
herein sought further time of three (3) weeks to file SOD/Counter Claim since
the time for filing the same expired on 14.07.2024. The learned Sole
Arbitrator acceding to the said request vide ‘procedural order no. 2’ extended
the time to file SOD/Counter Claim till 20.08.2024. The time to file rejoinder
was also thereby extended till 09.09.2024 and the matter was listed for final
arguments on 26.09.2024 at 02.00 p.m., 27.09.2024 from 11.00 a.m. to 05.00
p.m., 30.09.2024 from 02.00 p.m. to 05.00 p.m., 01.10.2024 from 11.00 a.m.
to 05.00 p.m. and 03.10.2024 at 11.00 a.m.
3.5 The Respondent herein thereafter moved an application seeking
additional documents from the Appellant. The Appellant on the other hand
moved an application apprising the learned Sole Arbitrator that a Special
Leave Petition (SLP) has been filed by the Appellant for consolidation of the
three (3) different arbitrations which were pending between the parties and
sought an adjournment on this ground. These applications were taken up by
the learned Sole Arbitrator on the first day scheduled for final arguments i.e.,
26.09.2024. The learned Sole Arbitrator adjourned the matter for hearing final
arguments to 16.10.2024 and vide ‘procedural order no. 3’ observed that the
Tribunal will continue to function till any order is passed by the Supreme
Court to the contrary.
3.6 The Appellant at hearing scheduled on 16.10.2024 again raised the plea
that the matter is before the Supreme Court in SLP and the tribunal should not
2
Statement of defence.
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move ahead with the arbitration proceedings in wake of the said SLP. The said
argument was once again rejected by the learned Sole Arbitrator vide
‘procedural order no. 4’ and the matter was yet again listed for 18.11.2024 for
final hearing.
3.7 At this stage, when the hearing was scheduled for final arguments on
18.11.2024, the Appellant thereafter moved two (2) applications as mentioned
in para 2 above and the impugned order was passed rejecting, dismissing both
the said applications.
3.8 The present appeal under Section 37(2)(a) of the Act of 1996 has been
filed challenging the said impugned order. The Appellant admits that it is the
rejection of the second application, which has been impugned in the present
appeal under Section 37(2)(a) of the Act of 1996. The rejection of the second
application pertains to condonation of delay in filing the Counter-Claim.
Thus, all references to impugned order in this judgment is only with respect
to the dismissal of the second application pertaining to condonation of delay
in filing the Counter-Claim.
3.9 At the outset the learned counsel for the Respondent has raised
objection with regards to the maintainability of the present appeal against the
impugned order under Section 37(2)(a) of the Act of 1996.
3.10 Learned counsels for both the parties have addressed arguments on the
said issue of maintainability and the same have been dealt with in this
judgment below.
Arguments of the Appellant i.e., the original respondent in the arbitral proceedings
4. The learned Senior Counsel for the Appellant contended that the
impugned order is patently illegal and the same is apparent on the face of
record.
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4.1 He stated that the learned Sole Arbitrator had neither fixed any
procedure as mandated under Section 19 of the Act of 1996 or the Delhi
International Arbitration Centre (‘DIAC’) Rules, nor had the learned Sole
Arbitrator followed any fixed procedure as is done in accordance with the
governing law. He stated that the proceedings were being conducted at the
whims and fancies of the learned Sole Arbitrator.
4.2 He stated that while declining to condone the delay and take the
Counter-Claim of the Appellant on record, the learned Sole Arbitrator has
declined to exercise Jurisdiction as per Section 16 of the Act of 1996 and
therefore the impugned order is amenable to challenge/Appeal under Section
37(2)(a) of the Act of 1996. He relied upon the judgment of the Supreme Court
in National Thermal Power Corpn. Ltd. v. Siemens Atkeingesekkschaft3.
4.3 He stated that the learned Sole Arbitrator has not passed the impugned
order deciding the Counter-Claim on merits and the same has not resulted in
the final determination of the Counter-Claim. He states that thus, the
impugned order does not fall within the definition of an ‘Award’ or an ‘Interim
award’ as per Section 2(1)(c) of the Act of 1996 and, therefore, a petition
under Section 34 of the Act of 1996 would not be maintainable. He also relied
upon the judgment of the Bombay High Court in Harinarayan G. Bajaj v.
Sharedeal Financial Conssultants Pvt. Ltd.4 to contend that the impugned
order does not qualify as an interim award
4.4 He stated that the only remedy which the Appellant has is the present
appeal filed under Section 37(2)(a) of the Act of 1996.
3
(2007) 4 SCC 451 at para 18.
4
2003 (2) ARBI LR 359 at para 7.
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4.5 He stated that a Counter-Claim will survive for independent
adjudication even if the claim is dismissed or withdrawn and the respondent
to a claim would be entitled to pursue their Counter-Claim regardless of the
pursuit of or the decision on the Claim and, therefore, the impugned order of
the learned Sole Arbitrator is liable to be set aside being untenable in law as
the Appellant has the right to pursue his Counter-Claim which has been
dismissed by the learned Sole Arbitrator in a cursory manner.
Arguments of the Respondent i.e., the original claimant in the arbitral proceedings
5. In reply, the learned counsel for the Respondent, at the outset, stated
that the present appeal is not maintainable under Section 37(2)(a) of the Act
of 1996 against the impugned order.
5.1 He stated that an appeal under Section 37(2)(a) of the Act of 1996
would only be maintainable against the order of the Arbitral Tribunal which
is passed accepting the pleas raised by a party under Section 16(2) and 16(3)
of the Act of 1996. He stated that Section 37 of the Act of 1996 grants a limited
right of appeal, only against such orders which are specified and listed in the
statute and the impugned order clearly does not fall in the said category as
specified under Section 16 of the Act of 1996.
5.2 He stated that the said dismissal of the first application is not in
contravention of the law as it is well settled that the Arbitral Tribunal has
powers to device its own procedures and parties submitting to the jurisdiction
of the Arbitral Tribunal are bound by law to follow the said procedure.
5.3 He stated that in the impugned order learned Sole Arbitrator has
exercised his jurisdiction and dismissed the second application for
condonation of delay after exercising the said jurisdiction.
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5.4 He stated that the said adjudication by the learned Sole Arbitrator qua
the dismissal of the second application is not an adjudication on the merits of
the Counter-Claim raised by the Appellant and the Tribunal has rightly denied
to take on record the Counter-Claim, which was filed belatedly on the date
when the matter was listed for final arguments.
5.5 He stated that since the impugned order has not decided whether the
Appellant is entitled to the Counter-Claim or not, said order cannot be termed
as an ‘Interim Award’ and, therefore, an appeal under Section 34 of the Act of
1996 will not be maintainable and to this extent he agrees with the counsel for
the Appellant. He relied on the following judgments in support of his
submissions: Vil Rohtak Jind Highway Pvt. Ltd. v. NHAI5, Container
Corporation of India Ltd. v. Texmaco Ltd.6 and Future Retail Ltd. v.
Amazon.Com NV Investment Holdings LCC & Ors.7
5.6 He stated that by way of the present appeal the Appellant is challenging
two (2) orders in essence one of which is with respect to the procedure fixed
by the learned Sole Arbitrator. He stated that there is catena of judgments of
this Court and Supreme Court which holds that the procedural discretion
exercised by the Arbitrator under Section 19 of the Act of 1996 cannot be
interfered by the Courts. He stated that the if the present appeal of the
Appellant is allowed this would frustrate the whole purpose and scheme of
the Act of 1996 which is speedy and expeditious disposal. He stated that the
objection raised by the Appellant that the procedure was not fixed by the
Arbitrator is untenable as the previous two counsels representing the
5
2022 SCC OnLine Del 4670 at paras 1, 15, 16 and 21.
6
2009 SCC OnLine Del 1594 at paras 3, 4, 5 and 6.
7
2022 SCC OnLine Del 13 at paras 24-26, 28 and 30.
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Appellant herein before the learned Sole Arbitrator had consented to the
schedule which was fixed by the learned Sole Arbitrator on various dates. He
stated that both the applications were filed after the counsel was changed for
the third time and the process adopted by the Appellant is prejudicial.
5.7 He stated that therefore, the remedy which is available to the Appellant
against the dismissal of the second application is to either await the final
award and challenge the same in accordance with law under Section 34 or to
initiate independent arbitration proceeding under Section 11 qua its claim,
which was sought to be raised by the Counter-Claim and seek a fresh
reference.
Analysis and Findings
6. This Court has heard the learned Senior Counsel for the Appellant and
the learned counsel for the Respondent and perused the record.
7. The issues which arise for consideration before this Court are:
(a) Whether the impugned order qua the second application can be
challenged under Section 37(2)(a) of the Act of 1996 in present
appeal?;
(b) Whether the order dismissing the Counter-Claim of the Appellant
on the ground of it being filed after delay at a belated stage in the
arbitral proceedings is a procedural order or the said dismissal
constitutes to be an ‘Interim Award’ in terms of Section 2(1)(c) of
the Act of 1996 making it amenable to challenge under Section 34
of the Act of 1996?;
(c) What is the remedy available to the Appellant against the said order
of dismissal?.
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Issue No. (a)
8.1 Mr. Vashist, learned Senior Counsel for the Appellant contended that
since the learned Sole Arbitrator did not adjudicate the Counter-Claim of the
Appellant, the Tribunal in essence has declined to exercise the jurisdiction
which was vested with and, therefore, such denial would fall under Section
16 of the Act of 1996. He further contended that thus, such an order would be
subject to challenge under Section 37 (2) (a) of the Act of 1996. He relied on
the judgment of National Thermal Power Corpn. Ltd. v. Siemens
Atkeingesekkschaft (Supra) and particularly para 18 of the said judgment to
contend that once the tribunal has declined to exercise jurisdiction and appeal
under Section 37 (2) would lie, the said para reads as under:
“18. The expression “jurisdiction” is a word of many hues. Its
colour is to be discerned from the setting in which it is used.
When we look at Section 16 of the Act, we find that the said
provision is one, which deals with the competence of the Arbitral
Tribunal to rule on its own jurisdiction. SBP & Co. v. Patel Engg.
Ltd. [(2005) 8 SCC 618] in a sense confined the operation of
Section 16 to cases where the Arbitral Tribunal was constituted at
the instance of the parties to the contract without reference to the
Chief Justice under Section 11(6) of the Act. In a case where the
parties had thus constituted the Arbitral Tribunal without recourse
to Section 11(6) of the Act, they still have the right to question the
jurisdiction of the Arbitral Tribunal including the right to invite a
ruling on any objection with respect to the existence or validity of
the arbitration agreement. It could therefore rule that there existed
no arbitration agreement, that the arbitration agreement was not
valid, or that the arbitration agreement did not confer jurisdiction
on the Tribunal to adjudicate upon the particular claim that is put
forward before it. Under sub-section (5), it has the obligation to
decide the plea and where it rejects the plea, it could continue with
the arbitral proceedings and make the award. Under sub-section (6),
a party aggrieved by such an arbitral award may make an
application for setting aside such arbitral award in accordance with
Section 34. In other words, in the challenge to the award, the party
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jurisdiction to pass it or that it had exceeded its authority, in passing
it. This happens when the Tribunal proceeds to pass an award. It is
in the context of the various sub-sections of Section 16 that one has
to understand the content of the expression “jurisdiction” and the
scope of the appeal provision. In a case where the Arbitral Tribunal
proceeds to pass an award after overruling the objection relating
to jurisdiction, it is clear from sub-section (6) of Section 16 that
the parties have to resort to Section 34 of the Act to get rid of that
award, if possible. But, if the Tribunal declines jurisdiction or
declines to pass an award and dismisses the arbitral proceedings,
the party aggrieved is not without a remedy. Section 37(2) deals
with such a situation. Where the plea of absence of jurisdiction
or a claim being in excess of jurisdiction is accepted by the
Arbitral Tribunal and it refuses to go into the merits of the
claim by declining jurisdiction, a direct appeal is provided. In
the context of Section 16 and the specific wording of Section
37(2)(a) of the Act, it would be appropriate to hold that what is made
directly appealable by Section 37(2)(a) of the Act is only an
acceptance of a plea of absence of jurisdiction, or of excessive
exercise of jurisdiction and the refusal to proceed further either
wholly or partly.”
(Emphasis supplied)
8.2 On the other hand, Mr. Gandhi, learned Counsel for the Respondent
contended that the learned Sole Arbitrator has instead exercised its power and
jurisdiction under Section 19 of the Act and dismissed the Counter-Claim of
the Appellant because of the fact that it was filed at a belated stage when the
matter was set down for final hearing and allowing such Counter-Claim to be
taken on record would have caused impediment in achieving expeditious
disposal of the matter before the learned Sole Arbitrator.
8.3 He stated that since the impugned order has not been passed under
Section 16 (2) and/or (3) of the Act of 1996 and thus, the present appeal filed
under Section 37 (2) (a) is not maintainable. He relied on the judgment of Vil
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Rohtak Jind Highway Pvt. Ltd. v. NHAI (Supra) and the relevant paragraph
relied in this regard reads as under:
“15. The crucial point is that the Arbitral Tribunal has not finally
decided whether the Petitioner is entitled to Claim (b) – which was
sought to be introduced by way of the amendment application. The
impugned Order only denies the Petitioner an amendment of the
SOC. Section 23(3) of the Act specifically deals with the power of
the Tribunal to allow amendments. That exercise of power of the
Tribunal is not amenable to challenge under Section 37 of the Act,
which grants a constricted right of appeal-only against certain
specified orders listed out in the statue. Therefore, indisputably and
evidently, the impugned Order is not appealable under Section 37
of the Act. There is indeed sufficient case-law holding that only
orders enumerated under Section 37 of the Act are appealable and
the Court cannot exercise appellate jurisdiction over such orders
under any other provision…….”
(Emphasis supplied)
8.4 In light of the said arguments this Court finds it necessary to reproduce
the relevant provisions of Section 16 and 37 of the Act of 1996, which reads
as under:
“16. Competence of arbitral tribunal to rule on its
jurisdiction.–(1) The arbitral tribunal may rule on its own
jurisdiction, including ruling on any objections with respect to the
existence or validity of the arbitration agreement, and for that
purpose,-
…..
(2) A plea that the arbitral tribunal does not have jurisdiction
shall be raised not later than the submission of the statement of
defence; however, a party shall not be precluded from raising such
a plea merely because that he has appointed, or participated in the
appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its
authority shall be raised as soon as the matter alleged to be beyond
the scope of its authority is raised during the arbitral proceedings.”
(Emphasis supplied)
“37. Appealable orders.–(1) An appeal shall lie from the
following orders (and from no others) to the Court authorised by
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law to hear appeals from original decrees of the Court passing the
order, namely:–
…..
(2) Appeal shall also lie to a court from an order of the arbitral
tribunal–
(a) accepting the plea referred to in sub-section (2) or sub-
section (3) of section 16; or
…..”
(Emphasis supplied)
8.5 The submission of the Appellant that the learned Sole Arbitrator has
declined to exercise its jurisdiction by dismissing the second application and
not taking the Counter-Claim on record is factually incorrect.
8.6 In the facts of the present case the right of the Appellant to file the
SOD/Counter-Claim was first expiring on 14.07.2024 and it was extended at
its request till 20.08.2024. However, no Counter-Claim was filed by the
Appellant within the extended time of its own volition. The matter was listed
for final arguments on dates fixed in September, 2024, thereafter, in October,
2024 and lastly in November, 2024. In these facts, when the second
application for placing on record the Counter-Claim was filed with a prayer
for condoning the delay in filing the same, the learned Sole Arbitrator has
rejected the prayer for condonation of delay. In the considered opinion of this
Court, the order of the learned Sole Arbitrator rejecting the prayer for
condonation of delay is in exercise of the jurisdiction vested in the Tribunal
and this order cannot be said to be an order passed by the Tribunal declining
to exercise jurisdiction or in excess of its jurisdiction. Thus, the submission
of the Appellant that the impugned order falls within Section 16(2) or (3) is
without any merit.
8.7 The judgment of Supreme Court in National Thermal Power Corpn.
Ltd. v. Siemens Atkeingesekkschaft (Supra) relied upon by the Appellant
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does not come to its aid, rather the said judgment holds that an appeal under
Section 37 (2) (a) of the Act of 1996 is not maintainable against orders of a
Tribunal holding that a claim is not maintainable before it for valid reasons.
The relevant paragraph 19 of the judgment reads as under:
“19. In a case where a counterclaim is referred to and dealt with and
a plea that the counterclaim does not survive in view of the
settlement of disputes between the parties earlier arrived at is
accepted, it could not be held to be a case of refusal to exercise
jurisdiction by the Arbitral Tribunal. Same is the position when an
Arbitral Tribunal finds that a claim was dead and was not available
to be made at the relevant time or that the claim was not
maintainable for other valid reasons or that the claim was barred by
limitation. They are all adjudications by the Tribunal on the merits
of the claim and in such a case the aggrieved party can have
recourse only to Section 34 of the Act and will have to succeed on
establishing any of the grounds available under that provision. It
would not be open to that party to take up the position that by
refusing to go into the merits of his claim, the Arbitral Tribunal
had upheld a plea that it does not have jurisdiction to entertain
the claim and hence the award or order made by it, comes
within the purview of Section 16(2) of the Act and consequently
is appealable under Section 37(2)(a) of the Act.”
(Emphasis supplied)
8.8 The Supreme Court in the said judgment at paragraph ’18’ has clearly
observed that when a plea is raised by a party to the effect that the Arbitral Tribunal
does not have the jurisdiction to decide the claim raised or that the claim raised is
in excess of the jurisdiction of the Arbitral Tribunal and when such plea is
considered and accepted by the Arbitral Tribunal, then the said order falls under
Section 16 of the Act of 1996 and is therefore, appealable under Section 37 (2) of
the Act. It is further observed by the Supreme Court that what is directly made
appealable under Section 37(2) (a) of the Act of 1996 is ‘only acceptance’ of the
plea raised of the absence of the jurisdiction or of ‘excessive exercise’ of
jurisdiction.
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8.9 In the facts of the present case no plea was ever raised by any party before
the learned Sole Arbitrator that it does not have the jurisdiction to decide the
Counter-Claim or that the Counter-Claim is in excess of the jurisdiction of learned
Sole Arbitrator. In such eventuality of facts, no chance arose for the acceptance of
such pleas by the learned Sole Arbitrator.
8.10 The learned Sole Arbitrator has simply declined to take on record the
Counter-Claim which was filed at a belated stage at the juncture of final arguments
and the said decision cannot be termed as ‘decline of exercise of jurisdiction’ by the
learned Sole Arbitrator, giving it colors of Section 16(2) of the Act of 1996.
Therefore, the contention of the Appellant is without any merits and it is hereby
rejected. In the opinion of this Court the present appeal under Section 37(2)(a) of
the Act of 1996 against the impugned order of the learned Sole Arbitrator is not
maintainable.
8.11 The order of the learned Sole Arbitrator dismissing the first application
would neither fall under Section 16(2) or Section 16(3) of the Act of 1996
and, therefore, no appeal against its dismissal would be maintainable under
Section 37(2)(a) of the Act of 1996. The learned senior counsel for the
Appellant fairly did not address any arguments on the maintainability of the
appeal qua the said dismissal.
Issue No. (b)
9. Both Appellant and Respondent are ad-idem that the impugned order
does not have the trappings of an interim award and is, therefore, not
amendable to challenge under Section 34 of the Act of 1996. In this regard,
the judgments of the Coordinate Bench of this Court in Vil Rohtak Jind
Highway Pvt. Ltd. (supra) and Container Corporation of India Ltd.
(supra) has been cited by the Respondent. In these judgments as well, the facts
were similar and the respondent’s prayer for taking counter-claim(s) on record
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through amendment had been rejected; however, the Court declined to
entertain the Section 34 petition against the said procedural order and held
that the party would have to await the passing of the final award and challenge
the procedural order under Section 34.
9.1 Thus, the impugned order passed by the learned Sole Arbitrator which
declines to condone the delay in filing of the counter-claim for being beyond
the period granted by the Tribunal falls within its jurisdiction under Section
23 of the Act of 1996 and such a procedural order is not amenable to
interference at this interim stage under Section 34 and Appellant would have
to await passing of the final award to challenge this procedural order.
Issue No. (c)
10. It has already been observed in the above two (2) issues that the
Appellant herein does not have a remedy either under Section 37(2)(a) of the
Act of 1996 or under Section 34 of the Act of 1996 against the impugned
order.
10.1 It is well settled that a Counter-Claim stands on its own footing and is
independent of a claim raised by a defending party in form of SOD.
10.2 In the facts of this case, the Counter-Claim has not been rejected on
merits or on the grounds of limitation. There has thus, been no adjudication
on the merits of the claim and the right of the Appellant to have the said
Counter-Claim decided on merits has not been foreclosed by the impugned
order.
10.3 The Respondent has fairly conceded that the Appellant would be
entitled to initiate independent proceedings for appointment of an Arbitrator
for adjudication of the Counter-Claims and the only effect of the procedural
order is that the Appellant cannot insist on filing of the Counter-Claim at this
Signature Not Verified
Signed By:MAHIMA ARB. A. (COMM.) 63/2024 Page 16 of 17
SHARMA
Signing Date:09.12.2024
16:58:08
belated stage in the present arbitral proceedings which are at the stage of final
arguments.
11. Therefore, this Court is of the opinion that the Appellant herein is at
liberty to initiate proceedings for appointment of an independent Arbitrator in
accordance with law for adjudication of its Counter-Claim.
12. In view of the aforesaid findings, the present appeal stands dismissed.
MANMEET PRITAM SINGH ARORA
(JUDGE)
DECEMBER 09, 2024/msh/sk
Signature Not Verified
Signed By:MAHIMA ARB. A. (COMM.) 63/2024 Page 17 of 17
SHARMA
Signing Date:09.12.2024
16:58:08