The Arbitration and Conciliation Act, 1996 has clearly emphasised in its provisions of the extent of judicial intervention by giving utmost authority to the Arbitral Tribunal to decide on proceedings presided upon. The Act has laid down certain grounds under which judicial intervention is permissible. However, certain important questions of law were bought before the High Court in the matter of UP Rajkiya Nirman Nigam Ltd Versus M/S C&C Construction Ltd and Anr regarding the application of Section 115 of the Civil Procedure Code against the order passed by the Civil Court on an application under Section 14(2) of the Act.
Hon’ble Justice Sunita Agarwal, who presided over the petition, was confronted with the following questions as to the interpretation of law:
(1) Whether Section 5 contained in Part I of the 1996′ Act can be read to mean that by virtue of the said provision, the applicability of the C.P.C. is limited to the extent to which the 1996′ Act permits as it is a self-contained Code. In other words, whether Section 5 of the 1996′ Act contemplates express or implied exclusion of the provisions of the C.P.C. except to the extent that it has been made applicable specifically by the 1996′ Act.
(2) Whether the provisions under Section 115 C.P.C. provide substantive right to a party to assail the order passed in a matter arising out of the proceedings before the civil court or it is only procedural in nature i.e. whether a revision under Section 115 C.P.C. can be said to be an alternative remedy available to such an applicant.
(3) Whether the availability of the remedy of revision under Section 115 C.P.C. would bar, eclipse or circumscribe the remedy available under Article 227 of the Constitution of India or they are the alternative remedies available to the applicant by sheer change of nomenclature.
(4) The last contentious question which has to be determined as to whether after two years, on the preliminary objection raised by the respondent, during the course of final arguments, the present petition under Article 227 of the Constitution is to be thrown on the ground of availability of remedy of revision under Section 115 C.P.C.
The Counsel for the Respondent objected to the petition on the grounds that revision of the order is permissible under Section 115 of the Civil Procedure Code and therefore, the remedy under Article 227 is not maintainable. The Counsel for the Petitioner iterated that the legislation cannot limit the scope and applicability of Article 227 of the Constitution by giving reference to the order passed in Mahanagar Telephone Nigam Ltd. v. M/S. Applied Electronics Ltd.
In its conclusion, Justice Agarwal rejected the objection of the Respondnet on the maintainability of the petition under Article 227 on the following observation:
“Having noticed the scope of enquiry under Section 115 C.P.C. and Article 227 of the Constitution and the fact that the supervisory power in both jurisdictions to be exercised by the High Court are akin to each other and that the objection regarding the maintainability of this petition on the ground of alternative remedy of revision has been taken after two years of its institution, this Court is of the considered view that this petition under Article 227 of the Constitution cannot be thrown on the ground of entertainability i.e. only for the order impugned being revisable. The legal position that the power of superintendence under Article 227 is to be sparingly used in an appropriate case where the order of civil court is assailed, can not to be taken as a ground to throw this petition outrightly on the plea of maintainability, without entering into the merits of the matter.”
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