Delhi High Court: While dealing with an arbitration petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (‘Act of 1996’), the single judge bench of V. Kameswar Rao, J., held that the present petition filed by the petitioner was not maintainable inter se parties, as the issue of appointment of an arbitrator had attained finality with the order passed by Supreme Court in United India Insurance Company Limited v. Antique Art Exports Pvt. Ltd., (2019) 5 SCC 362 (‘Antique Art Export’).
In the matter at hand, the petition was filed by Antique Art Export Pvt. Ltd. (‘petitioner’) as against United India Insurance Company (‘respondent’) for appointment of an Arbitrator to adjudicate the dispute between the parties.
The issue for consideration before the Court was whether the present petitions would be maintainable in view of the fact that petitioner had already filed petitions seeking appointment of an Arbitrator which though allowed by Delhi High Court in 2017, but on a challenge by the respondent before the Supreme Court had been allowed vide a common judgment in 2019, wherein it was held that, no arbitral dispute subsists between the parties, resulting in the Supreme Court setting aside the order of Delhi High Court appointing the Arbitrator. Even the review petition filed by the petitioner seeking review of 2019 common judgment of the Supreme Court was dismissed.
The bench dismissed the contention of the petitioner which stated that since the judgment of Antique Art Export was overruled by Mayavati Trading Pvt Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714, the doctrine of res judicate would not be applicable. The Court was of the view that the dispute inter se the parties with regard to the appointment of Arbitrator had attained finality with the decision of the Supreme Court in Antique Art Export. It further stated that the Supreme Court had laid down the correct law and did not declare the Antique Art Export judgment as a nullity thus, making it binding between the parties.
The bench held that the submission of the petitioner that the Supreme Court in Antique Arts Export should have only considered the existence of arbitration agreement as misconceived and was of the view that such cannot be a ground to re-open an issue which was already settled between the parties.
The Court further dismissing the argument stated by the petitioner that the Antique Art Export judgment was erroneous and without jurisdiction, in view of Section 11(6)(A) of the Act of 1996 held that the proceedings under the said section would be governed by the principle of res judicata in view of the judgment in Anil v. Rajendra, (2015) 2 SCC 583.
The Court while relying on Anil v Rajendra (Supra) stated that the argument of the petitioner that Section 11 petition was not made to the ‘Court’ withing the meaning of Section 2(1)(e) of the Act of 1996, therefore, not attracting Section 42 of the Act of 1996 was misplaced since the exercise of the power by the High Court or the Supreme Court under Section 11(6) of the Act of 1996 was a judicial function. Thus, the High Court could determine the issue of maintainability including territorial jurisdiction and res judicata.
The Court was of the view that High Court would be within its right to dismiss the petition at the threshold if the petition is not maintainable, otherwise an unacceptable position of law would arise where despite a petition being not maintainable due to lack of territorial jurisdiction would need to be entertained.
The Court was thus of the view that the present petition filed by the petitioner was not maintainable inter se parties, as the issue of appointment of an arbitrator had attained finality with the order passed by Supreme Court in Antique Art Export.
With these observations, the bench dismissed the petition.
[Antique Art Export Pvt. Ltd. v United India Insurance Company Ltd., 2023 SCC OnLine Del 1091, decided on 22-02-2023]
Advocates who appeared in this case:
For the petitioner- Advocate Manish Kaushik and Advocate Ajit Singh;
For the respondent- Advocate Amit Kumar Singh, Advocate K. Enatoli Sema, Advocate Chubalemla Chang and Advocate Tavikato Achumi;
Judgment Authored by Justice V. Kameswar Rao.