The Commissioner Of Income Tax… v. Mr.chaitanya Nikte A/W Ms.sneha Bhange For R

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 2671 OF 2018 The Commissioner of Income Tax… Petitioners Versus The Micro and Small Enterprises FacilitationCouncil, Govt of NCT of Delhi and Ors.…Respondents Mr. Anil Singh, Addl. Solicitor General a/w Mr.Sham Walve and Ms. Carina Xavier for the Petitioner. Ms. P.H. Kantharaia, AGP for the respondent State. Mr.Chaitanya Nikte a/w Ms.Sneha Bhange for R. No. 2. CORAM : B.P. DHARMADHIKAKRI &REVATI MOHITE DERE, JJ.DATE :JANUARY 07, 2019 P.C.: Heard learned Additional Solicitor General for the petitioner, Mr.Nikte for respondent no. 2 and AGP for respondent no. 1 state.Nobody is present for respondent no. 3. 2.The only question raised in this petition is about thepropriety of selection of agency namely Delhi InternationalArbitration Centre (formerly Delhi High Court Arbitration Centre,DAC) for conducting the arbitration proceedings. This appointmentis ordered by respondent no.1 under section 18 after noticing that the conciliation is not possible. Petitioners rely on the decision ofDivision Bench of this Court reported in the case of M/s. SteelAuthority of India Ltd. And anr Vs. Micro, Small EnterprisesFacilitation Council1 and identical findings relied upon by thelearned Single Judge adhering to it in the judgment of M/s.Hindustan Wires Limited Vs. Mr. R. Suresh and Ors.2 3.Respondent nos. 1 and 2 submit that the competency ofrespondent no.1 to take cognizance of prayer for reference undersection 18 is not in dispute. That authority has in exercise ofstatutory obligations cast upon it, chosen one of the recognizedarbitrators and accordingly reference has been made. Theagreement between the parties for appointing a particular personas arbitrator or restricting the jurisdiction for arbitrationproceedings to particular territory does not survive after referenceis made under section 18. It is also urged that the judgment ofthe Division Bench of this court in the case of Steel Authority ofIndia Ltd (supra) is not found laying down good law by latterDivision Bench judgment in the case of Gujarat State Petronet Ltd.Vs. Micro and Small Enterprises Facilitation Council3. It issubmitted that there the contrary view reached by Allahabad High 1AIR 2012 Bom 178 22013 SCC Online Bom 547 32018 SCC Online Bom 2039 Court and Gujarat High Court has been considered. The fact thatthe view taken by the Gujarat High Court has been maintained bythe Hon'ble Apex Court on 5/7/2017 is also taken a note of. Therespective counsel therefore, submit that the reliance upon thejudgment in the case of Steel Authority of India Limited (supra) isunwarranted. 4.Without prejudice, they also point out that the impugnedreference to arbitration is made by respondent no. 1 herein whichhas seat at Delhi and reference is also to an agency at Delhi. Thewrit petition therefore, at the most could have been filed before theHigh Court at Delhi and this court therefore, lacks territorialjurisdiction. 5.Fairly our attention is also invited to the objection on thesame lines raised by the Petitioners before the respondent no. 3agency and an order passed by the sole arbitrator on 10/7/2018framing the preliminary issue. They submit that as the very sameissue is being looked into by the sole arbitrator and petitionershave raised it there, the challenge in the present petition is onlywith a view to stall the further proceedings and progress of thematter. 6.We have considered the relevant rulings. We find that the present matter has been filed sometime after 08/08/2018. The solearbitrator appears to have framed the preliminary issue whichreads as under : “Whether this Arbitral Tribunal has jurisdiction toentertain the present claim filed by the claimant in thepresent form? (OPR).” 5.Fairly our attention is also invited to the objection on thesame lines raised by the Petitioners before the respondent no. 3agency and an order passed by the sole arbitrator on 10/7/2018framing the preliminary issue. They submit that as the very sameissue is being looked into by the sole arbitrator and petitionershave raised it there, the challenge in the present petition is onlywith a view to stall the further proceedings and progress of thematter. 6.We have considered the relevant rulings. We find that the present matter has been filed sometime after 08/08/2018. The solearbitrator appears to have framed the preliminary issue whichreads as under : “Whether this Arbitral Tribunal has jurisdiction toentertain the present claim filed by the claimant in thepresent form? (OPR).” 7.It is therefore, apparent that all contentions being raisedbefore us by the petitioner, can be looked into by the respondentno. 3. As the petitioners have already raised the same before thesole arbitrator and has approached this court after sole arbitratorframed the preliminary issue, we are not inclined to intervene inthe writ jurisdiction. We keep all contentions of parties open andaccordingly dispose of the writ petition. (REVATI MOHITE DERE, J.) (B.P. DHARMADHIKARI, J.)