JUDGMENT Poonam Srivastava, J.
1. Heard Sri M.K. Gupta, Advocate, counsel for the petitioner.
2. The order dated 27.7.2004 passed by Additional District Judge, Aligarh in Misc. Civil Appeal No. 114 of 2003, confirming the order of Civil Judge (Junior Division) Koil, Aligarh dated 24.9.2003 in Original Suit No. 89 of 2003 is challenged in this writ petition. The dispute revolves around an alleged agreement between the petitioner and the contesting respondents U.P.S.R.T.C. through its Managing Director, regarding existence of an arbitration agreement. Facts of the present case is that petitioner has been running an S.T.D Booth at Roadways Bus Stand near Gandhi Park, Aligarh at the rent of Rs. 1,000/- per month. The petitioner claimed to have paid the rent up till 22.2.2002 against the Receipt No. 000946, Book No. 385 dated 29.1.2002. The contesting respondents extended a threat to remove the petitioner from his S.T.D. booth by force. Hence, the petitioner instituted an Original Suit No. 89 of 2002 claiming a relief of permanent prohibitory injunction in favour of the plaintiff/petitioner and to restrain the contesting respondents from interfering in peaceful possession running and occupation of the S.T.D./P.C.O. Booth No. 3 within the campus of Bus Stand of U.P.S.R.T.C, situated near Gandhi Park, Aligarh. The petitioner also filed rent receipts in support of the plaint contention. An application 27-C2 was filed by the defendant/respondents raising a preliminary objection regarding maintainability of the Suit. The defendants claimed that there was an arbitration agreement between the parties incorporated in paragraph 18 of the agreement, therefore, the Civil Suit was completely barred. The trial court allowed the preliminary objection vide judgment and order dated 24.9.2003 and permitted the parties to refer the dispute within a period of three months to an arbitrator. However, meanwhile exercising the powers under Section 9 of the Arbitration and Conciliation Act 1996 (hereinafter referred as the Act) directed the parties to maintain status quo. The petitioner challenged the said order by filing a Misc. Appeal No. 114 of 2003, which was also dismissed vide judgment and order dated 27.7.2004. Both the judgments are impugned in the present writ petition.
3. The petitioner has challenged the judgments of the courts below stating that the alleged agreement, which is basis of the preliminary objection of the defendants, is a forged document. The trial court was liable to frame an issue in this regard and only after adjudicating on the question of authenticity of the agreement, should have passed the order referring the dispute to the arbitrator. Counsel for the petitioner submitted that on the face of specific denial of the execution and existence of any agreement, the courts below were liable to record a finding after making thorough inquiry regarding genuineness of the document. The Appellate court has also failed to give any finding on the ground Nos. 2 and 3 raised in the memo of Appeal, which has also been annexed with the writ petition. Contention of the counsel for the petitioner is that original agreement or duly certified copy thereof as required by law was not brought before the court and it was never contended by the defendants that they were always ready and willing to work according to the terms of the so called agreement. In the circumstances, the order referring the dispute to an arbitrator is liable to be set at naught. The question, which has to be decided in the present petition is, that as to whether the courts below were correct in referring the matter to be decided by an arbitrator without examining the validity and the existence of an arbitration clause in the agreement, which the defendants claimed to have entered into between the parties and the plaintiff's clear denial.
4. The Act of 1996 completely bars the jurisdiction of the civil court. Section 42 of the Act reads as follows:-
Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and ail subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.
5. It is also relevant to examine Sections 11 and 16 of the Act Section 11 reads as follows:-
Appointment of arbitrators -(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to Sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
(3) Failing any agreement referred to in Sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
(4) If the appointment procedure in Sub-section (3) applies and-
(a) a party jails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or
(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
(5) failing any agreement referred to in Sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
(6) Where, under an appointment procedure agreed upon by the parties,-
(a) a party fails to act as required under that procedure, or
(b) the parties, or the two appointed arbitrators, Jail to reach an agreement expected of them under that procedure; or
(c) a person, including an institution fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(7) A decision on a matter entrusted by Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justice or the person or institution designated by him is final.
(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to-
(a) any qualifications required of the arbitrator by the agreement of the parties; and
(b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.
(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.
(10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by Sub-section (4) or Sub-section (5) or Sub-section (6) to him.
(11) Where more than one request has been made under Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant Sub-section shall alone be competent to decide on the request.
(12) (a) Where the matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those Sub-sections shall be construed as a reference to the "Chief Justice of India ".
(c) Where the matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those Sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of Sub-section (1) of Section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.
Section 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,-
(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
(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 he precluded from raising such a plea merely because that he was 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.
(4) The arbitral tribunal may, in either of the cases referred to in Sub-section (2) or Sub-section (3), admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in Sub-section (2) or Sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with Section 34.
6. It is well settled by the Apex Court in a number of decisions that the appointment of the arbitrator under Section 11 of the Act is an administrative order and can be challenged under Article 226 of the Constitution of India. In the case of Konkan Railway Corporation Ltd. v. Mehul Construction Company J.T. 2000 (9) S.C. page 362, Konkan Railway Corporation Ltd. v. Rani Construction Pvt. Ltd J.T. 2002 (1) S.C and Nimet Resources Inc. v. Essar Steels Ltd. J.T. 2000 (S1) S.C. page 95. The aforesaid decisions were relied upon by the Apex Court. In the case of Hythro Power Corporation Ltd. v. Delhi Transco Ltd. J.T. 2003 (6) S.C. page 515, in paragraph 11, the Apex Court has held as below:-
Keeping in view the law as settled by this Court, the designate of the Chief Justice acting under Section 11 of the Act and the Division Bench of the High Court in exercise of power under Article 226 of the Constitution both acted under a misconception of law and wrongly held that the disputes were not referable to the arbitration. The appellant sought reference of its disputes with the respondent/company for adjudication through the arbitration in accordance with arbitration clause in the alleged agreement arrived at between them. Whether on the facts mentioned above an arbitration agreement can be said to have existed by recourse to arbitration clause in NIT was itself a dispute which deserved to be referred to the arbitral tribunal in accordance with the arbitration clause. Section 16 empowers the arbitral tribunal to decide the question of existence and validity of the arbitration agreement.
7. In the circumstances, it is evident that the forum available to the petitioner is only one under Section 11 of the Act where the question of an arbitration agreement can be adjudicated by the Chief Justice or a person designated by the Chief Justice in exercise of power under Section 11 of the Act. In fact, an order passed under Section 11 can be challenged in a writ petition as provided has already held in a number of decisions mentioned above as well as in the case of State of Orissa and Ors. v. Gokulananda Jena, J.T. 2003 (6) S.C. page 246. Perusal of Section 16 of the Act also shows that the arbitral tribunal can rule on its own jurisdiction including any objection with respect to existence of validity of an arbitration agreement. In the circumstances, it is clear that the question of an arbitration agreement can be examined by the arbitrator and in the event, objections are rejected by the arbitrator under Section 16 of the Act, the same can be a valid ground for setting aside the arbitral award under Section 34 of the Act. In the case of Food Corporation of India v. Indian Council of Arbitration and Ors. J.T. 2003 (5) S.C. page 480. The Apex Court has ruled that legal propriety and the validity of the constitution of arbitral tribunal and any objection to existence of any valid agreement had to be adjudicated by the very arbitral tribunal after a reference is made to it and the Apex Court had directed the I.C.A. one of the contesting respondent taking into account the requirement of law and all equities and the interest of the Chief Justice to direct I.C.A. forthwith and not later than 16 days from the date of nomination of the arbitrator to raise and pursue the objection and contention as envisaged under Section 16 of 1996 Act. In the circumstances, looking various decisions of the Apex Court as well as the provisions of the Act, the civil court had no jurisdiction to decide the disputed question of validity of arbitration agreement and it has rightly referred the matter to the arbitrator. The court however, has taken into consideration irreparable loss that could be caused to the petitioner and had exercised powers under Section 9 of the Act to safeguard the interest of the petitioner as an interim measure. Perusal of various provisions of the Act as discussed hereinabove and the decision of the Apex Court, I am of the view that this Court cannot interfere at this stage and examine the question as to the legality and propriety as well as correctness and genuineness of agreement of the containing arbitration clause in exercise of powers under Article 226 of the Constitution of India. The petitioner has ample opportunity to voice his grievance under Section 16 of the Act, which will be properly adjudicated. The courts below have already taken care to safeguard the interest of the petitioner by directing the parties to maintain status quo till the reference to arbitrator is made, who shall also take adequate steps looking to the facts and circumstances of the case to safeguard the interest of the respective parties.
8. For the reasons discussed above, I am not inclined to interfere at this stage in exercise of power under Article 226/227 of the Constitution of India. The writ petition is dismissed. There shall be no order as to costs.