We have considered the submissions of both the
parties and have perused the record, what is the nature
of jurisdiction of the Chief Justice while deciding an
application under Section 11 of the Act has elaborately
been considered by Seven Judge Bench of this court in
SBP & CO. versus Patel Engineering Ltd and another
(2005) 8 SCC 618. In para 47 of the judgment,
conclusions were recorded by the larger Bench.
Conclusion IV is relevant for the present case which is
quoted as below:
“47. We, therefore, sum up our conclusions
as follows:
(iv) The Chief Justice or the designated
Judge will have the right to decide the
preliminary aspects as indicated in the
earlier part of this judgment. These will be
his own jurisdiction to entertain the request,
the existence of a valid arbitration
agreement, the existence or otherwise of a
live claim, the existence of the condition for
the exercise of his power and on the
qualifications of the arbitrator or
arbitrators. The Chief Justice or the
designated Judge would be entitled to seek
the opinion of an institution in the matter of
nominating an arbitrator qualified in terms
of Section 11(8) of the Act if the need arises
but the order appointing the arbitrator
could only be that of the Chief Justice or the
designated Judge.”
17. The Chief Justice exercises the judicial power while
passing an order under Section 11 of the Act thus can
examine the question as to whether the claim which has
been raised before him survives and needs to be
adjudicated. It goes without saying that if Chief Justice
finds that claim is a dead claim, he can exercise
jurisdiction in rejecting the application.
18. A two Judge Bench of this court in Indian Oil
Corporation Limited vs. SPS Engineering Limited,
2011 (3) SCC 507, had occasion to consider what is a
‘live claim’ within the meaning of Section 11 of the Act.
Elaborating the jurisdiction of the Chief Justice, under
Section 11 of the Act following was laid down by this
court in para 14 of the judgment:
“14. …….The Chief Justice or his designate
may however choose to decide whether the
claim is a dead (long-barred) claim or
whether the parties have, by recording
satisfaction, exhausted all rights,
obligations and remedies under the contract,
so that neither the contract nor the
arbitration agreement survived. When it is
said that the Chief Justice or his designate
may choose to decide whether the claim is
a dead claim, it is implied that he will do so
only when the claim is evidently and
patently a long time-barred claim and there
is no need for any detailed consideration of
evidence. We may elucidate by an
illustration: if the contractor makes a claim
a decade or so after completion of the work
without referring to any acknowledgment of
a liability or other factors that kept the
claim alive in law, and the claim is patently
long time-barred, the Chief Justice
or his designate will examine whether the
claim is a dead claim (that is, a long
time-barred claim). On the other hand, if
the contractor makes a claim for payment,
beyond three years of completing of the
work but say within five years of
completion of work, and alleges that the
final bill was drawn up and payments
were made within three years before the
claim, the Court will not enter into a
disputed question whether the claim was
barred by limitation or not. The Court will
leave the matter to the decision of the
Tribunal. If the distinction between
apparent and obvious dead claims, and
claims involving disputed issues of
limitation is not kept in view, the Chief
Justice or his designate will end up
deciding the question of limitation in all
applications under Section 11 of the Act.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 7184 OF 2008
M/S. EMM ENN ASSOCIATES … APPELLANT(S)
VERSUS
COMMANDER WORKS ENGINEER … RESPONDENT(S)
& ORS
WITH
CIVIL APPEAL NO. 7185 OF 2008
Citation:AIR 2016 SC 3079
ASHOK BHUSHAN, J.
Print Page
parties and have perused the record, what is the nature
of jurisdiction of the Chief Justice while deciding an
application under Section 11 of the Act has elaborately
been considered by Seven Judge Bench of this court in
SBP & CO. versus Patel Engineering Ltd and another
(2005) 8 SCC 618. In para 47 of the judgment,
conclusions were recorded by the larger Bench.
Conclusion IV is relevant for the present case which is
quoted as below:
“47. We, therefore, sum up our conclusions
as follows:
(iv) The Chief Justice or the designated
Judge will have the right to decide the
preliminary aspects as indicated in the
earlier part of this judgment. These will be
his own jurisdiction to entertain the request,
the existence of a valid arbitration
agreement, the existence or otherwise of a
live claim, the existence of the condition for
the exercise of his power and on the
qualifications of the arbitrator or
arbitrators. The Chief Justice or the
designated Judge would be entitled to seek
the opinion of an institution in the matter of
nominating an arbitrator qualified in terms
of Section 11(8) of the Act if the need arises
but the order appointing the arbitrator
could only be that of the Chief Justice or the
designated Judge.”
17. The Chief Justice exercises the judicial power while
passing an order under Section 11 of the Act thus can
examine the question as to whether the claim which has
been raised before him survives and needs to be
adjudicated. It goes without saying that if Chief Justice
finds that claim is a dead claim, he can exercise
jurisdiction in rejecting the application.
18. A two Judge Bench of this court in Indian Oil
Corporation Limited vs. SPS Engineering Limited,
2011 (3) SCC 507, had occasion to consider what is a
‘live claim’ within the meaning of Section 11 of the Act.
Elaborating the jurisdiction of the Chief Justice, under
Section 11 of the Act following was laid down by this
court in para 14 of the judgment:
“14. …….The Chief Justice or his designate
may however choose to decide whether the
claim is a dead (long-barred) claim or
whether the parties have, by recording
satisfaction, exhausted all rights,
obligations and remedies under the contract,
so that neither the contract nor the
arbitration agreement survived. When it is
said that the Chief Justice or his designate
may choose to decide whether the claim is
a dead claim, it is implied that he will do so
only when the claim is evidently and
patently a long time-barred claim and there
is no need for any detailed consideration of
evidence. We may elucidate by an
illustration: if the contractor makes a claim
a decade or so after completion of the work
without referring to any acknowledgment of
a liability or other factors that kept the
claim alive in law, and the claim is patently
long time-barred, the Chief Justice
or his designate will examine whether the
claim is a dead claim (that is, a long
time-barred claim). On the other hand, if
the contractor makes a claim for payment,
beyond three years of completing of the
work but say within five years of
completion of work, and alleges that the
final bill was drawn up and payments
were made within three years before the
claim, the Court will not enter into a
disputed question whether the claim was
barred by limitation or not. The Court will
leave the matter to the decision of the
Tribunal. If the distinction between
apparent and obvious dead claims, and
claims involving disputed issues of
limitation is not kept in view, the Chief
Justice or his designate will end up
deciding the question of limitation in all
applications under Section 11 of the Act.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLATE JURISDICTION
CIVIL APPEAL NO. 7184 OF 2008
M/S. EMM ENN ASSOCIATES … APPELLANT(S)
VERSUS
COMMANDER WORKS ENGINEER … RESPONDENT(S)
& ORS
WITH
CIVIL APPEAL NO. 7185 OF 2008
Citation:AIR 2016 SC 3079
ASHOK BHUSHAN, J.
