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2014 (1) TMI 789 - SC - Companies LawAppointment of arbitrator - Appointment of expert by High Court - Billing Dispute - Dispute arose between the parties relating to amounts that is due and payable - High Court rejected to decided dispute - Held that:- Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it - as observed in Union of India v. Amrit Lal Manchanda and another [2004 (2) TMI 361 - SUPREME COURT OF INDIA]. The learned Judges have referred to paragraph 19 of SBP & Co. (2005 (10) TMI 495 - SUPREME COURT) and thereafter referred to Section 8 of the Act and opined what the judicial authority should decide. Thereafter the Court proceeded to deal with nature and scope of the issues arising for consideration in an application under Section 11 of the Act for appointment of the arbitrator While considering an application under Section 11 of the Act, the Chief Justice or his designate would not embark upon an examination of the issue of “arbitrability” or appropriateness of adjudication by a private forum, once he finds that there was an arbitration agreement between or among the parties, and would leave the issue of arbitrability for the decision of the Arbitral Tribunal. If the arbitrator wrongly holds that the dispute is arbitrable, the aggrieved party will have to challenge the award by filing an application under Section 34 of the Act, relying upon sub-section (2)(b)(i) of that section. The decisions rendered in Boghara Polyfab Private Limited (2008 (9) TMI 864 - SUPREME COURT) and Chloro Controls India Private Limited are in accord with the principles of law stated in SBP & Co. The designated Judge, as perceived from the impugned order, while dealing with an application under Section 11(6) of the Act, on an issue raised with regard to the excepted matters, was not justified in addressing the same on merits whether it is a dispute relating to excepted matters under the agreement in question or not. The designated Judge has fallen into error by opining that the disputes raised are not “billing disputes”, for the same should have been left to be adjudicated by the learned Arbitrator. The part of the order impugned that reflects the expression of opinion by the designate of the Chief Justice on the merits of the disputes, being pregnable, deserves to be set aside and is hereby set aside.
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