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Faremrs an appropriate case, the issue of more than one award may be necessitated on the facts of that case. However, by dealing with the matter in a piecemeal fashion, what must be borne in mind is that the resolution of the dispute as a whole will be delayed and parties will be put to additional expense. The arbitral tribunal should, therefore, consider whether there is any real advantage in delivering interim awards or in proceeding with the matter as a whole and delivering one final award, bearing in mind the avoidance of delay and additional expense.
Ultimately, a fair means for resolution of all disputes should be uppermost in the mind of the arbitral tribunal. To complete the scheme of the Act, Section 32 1 is also material. This section goes on to state that the arbitral proceedings would be terminated only by the final arbitral award, as opposed to an interim award, thus making it clear that there can be one or more interim awards, prior to a final award, which conclusively determine some of the issues between the parties, culminating in a final arbitral award which ultimately decides all remaining issues between the parties. The English Arbitration Act,throws some light on what is regarded as an interim award under English Law.
Section 47 thereof states: By reading this section, it becomes clear that more than one award finally determining any particular issue before the arbitral tribunal can be made on different aspects of the matters to be determined.
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A preliminary issue affecting the whole claim would expressly be the subject matter of an interim award under the English Act. Detailed reasons were given for this decision. In Satwant Singh Sodhi v. State of Punjab 3 SCC at andan interim award in respect of one particular item was made by the arbitrator in that case. The question before the Court was whether such award could be made the rule of the Court separately or could be said to have been superseded by a final award made on all the claims later. This Court held: The question whether interim award is final to the extent it goes or has effect till the final award is delivered will depend upon the form of the award. If the interim award is intended to have effect only so long as the final award is not delivered it will have the force of the interim award and it will cease to have effect after the final award is made.
If, on the other hand, the interim award is intended to finally determine the rights of the parties it will have the force of a complete award and will have effect even after the final award is delivered. The terms of the award dated do not indicate that the same is of interim nature. This Court in Rikhabdass v. In Juggilal Kamlapat v. General Fibre Dealers Ltd. Thus in the present case, it was not open to the arbitrator to redetermine the claim and make an award. Therefore, the view taken by the trial court that the earlier award made and written though signed was not pronounced but nevertheless had become complete and final, therefore, should be made the rule of the court appears to us to be correct with regard to Item 1 inasmuch as the claim in relation to Item 1 could not have been adjudicated by the arbitrator again and it has been 12 rightly excluded from the second award made by the arbitrator on Thus the view taken by the trial court on this aspect also appears to us to be correct.
Therefore, the trial court has rightly ordered the award dated to be the rule of the court except for Item 1 and in respect of which the award dated was ordered to be the rule of the court. In McDermott International Inc. Burn Standard Co. It uses interim award or final award. An award has been defined under Section 2 c to include an interim award. Sub-section 6 of Section 31 contemplates an interim award. An interim award in terms of the said provision is not one in respect of which a final award can be made, but it may be a final award on the matters covered thereby, but made at an interim stage. The learned arbitrator evolved the aforementioned procedure so as to enable the parties to address themselves as regards certain 13 disputes at the first instance.
As would appear from the partial award of the learned arbitrator, he deferred some claims.
He further expressed his hope and trust that in relation to some claims, the parties would arrive at some sort of settlement having regard to the fact that ONGC directly or indirectly was involved therein. While in relation to some of the claims, a finality was attached to the award, certain claims were deferred so as to enable the learned arbitrator to advert thereto at a later stage. If the partial award answers the definition of the award, as envisaged under Section 2 c of the Act, for all intent and purport, it would be a final award. In fact, the validity of the said award had also been questioned by BSCL by filing an objection in relation thereto. We cannot also lose sight of the fact that BSCL did not raise any objection before the arbitrator in relation to the jurisdiction of the arbitrator.
A ground to that effect has also not been taken in its application under Section 34 of the Act. We, however, even otherwise do not agree with the contention of Mr Mitra that a partial award is akin to a preliminary decree. On the other hand, we are of the opinion that it is final in all respects with regard to disputes referred to the arbitrator which are subject-matters of such award. By reason thereof the nature and character of an award is not changed. In any view of the matter, BSCL is not in any way prejudiced. We may state that both the partial award and the final 14 award are subject-matter of challenge under Section 34 of the Act.
Tested in the light of the statutory provisions and the case law cited above, it is clear that as the learned Arbitrator has disposed of one matter between the parties i. Section 16 of the Act lays down what, in 15 arbitration law, is stated to be the Kompetenz-kompetenz principle, viz.
At one time, the law was tendeers the arbitrator, being a creature of the contract, could not rule on the existence or tennders of the arbitration clause contained in tendets contract. Competence of arbitral tribunal to rule on its jurisdiction 1 The arbitral tribunal may rule on its own jurisdiction, including cooprative objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a fsrtilizer shall be treated Indiian an agreement lte of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail tertilizer jure the invalidity of the arbitration clause.
A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. 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 farmerw is raised during the trnders arbitral proceedings. The feryilizer tribunal may, in either case, admit a later plea if ferttilizer considers the delay justified. If the arbitral tribunal rules as a preliminary question that it has lt, any party may request, within thirty Inddian after having received notice of that ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.
Though the said UNCITRAL Model Law and Rules are intended to deal with international commercial arbitration and conciliation, they fretilizer, with appropriate modifications, dertilizer as a model for legislation on Indiann arbitration and conciliation. The present Bill seeks to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and to define the law relating to conciliation, taking into account the said UNCITRAL Model Law and Rules.
Fadmers is important to notice in the language of Section 16 cooperatkve is the fact that the arbitral tribunal may cooperatuve on its own jurisdiction, which teders it clear that it refers to whether the arbitral tribunal may embark upon an inquiry into the issues raised Indoan parties to the dispute. Here again, feertilizer English Arbitration Act of datkng some light on the Indian farmers fertilizer cooperative ltd tenders dating before us. Sections 30 Indian farmers fertilizer cooperative ltd tenders dating 31 of the said Act read as under: A party is not precluded from raising such an objection by the fact that he has appointed or participated in the appointment of an arbitrator.
If the parties agree which of these courses the tribunal should take, the tribunal shall proceed accordingly. In the classic sense, in Official Trustee v. Tara Chand [ ILR 33 Cal 68] it was stated that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it: Varkey Varkey1 SCR atmade a distinction between an erroneous decision on limitation being an error of law which is within the jurisdiction of the Court, and a decision where the Court acts without jurisdiction in the following terms: In assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation.
If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had 21 the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction.
As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh [AIR PC 85] and contended that since the court is bound under the provisions of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings.
The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. Now, the only question that remains to be decided in the present case is whether against the order of partial award an appeal is maintainable directly under Section 37 of the Act or not.
We have considered the submissions of learned counsel for the appellant and after going through the counterclaim and the partial award, we are of the opinion that no question of jurisdiction arises in the matter so as to enable the appellant to file a direct appeal under Section 37 of the Act before the High Court. As already mentioned above, an appeal under sub-section 2 of Section 37 only lies if there is an order passed under Sections 16 2 and 3 of the Act. Sections 16 2 and 3 deal with the exercise of jurisdiction. The plea of jurisdiction was not taken by the appellant.
It was taken by the respondent in order to meet their counterclaim. Therefore, we fail to understand how the question of jurisdiction was involved in the matter. In fact it was in the context of the fact that the entire counterclaims have already been satisfied and settled in the meeting that it was concluded that no further issues remained to be settled. In this context, the counterclaims filed by the appellant were opposed. If any grievance was there, that should have been sic raised by the respondent and not by the appellant. Therefore, there was no question of jurisdiction involved in the matter so as 23 to enable the appellant to approach the High Court directly.
Balasubramanyan, J. In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction.