(i) Order of Chief Justice Adjudicatory

A seven judge bench in the Supreme Court held a determinative dicta in the landmark case of
SBP and Company v. Patel Engineering Ltd1 that when a part approaches the Chief Justice ,
as the case may be, the order to be passed shall be a judicial order and not an administrative
one. It was if the order decides rights and liabilities of the parties, it cannot be administrative
in nature.

Moreover, if the matter involves discretion of the deciding authority and this discretion is to
be exercised on merely subjective and NOT objective grounds, then the order will be
administrative. The essence of a judicial proceeding is a lis between the parties that is to be
adjudicated on. Since the Chief Justice has to decide on the existence and the validity of the
arbitration agreement before appointing an arbitrator under Section 11, he can adjudicate
contentious issues. His decision will vitally affect the rights and liabilities of the parties. (The
right of the parties that is being affected is its contractual right to go to arbitration)Thus, it is
clear that the Chief Justice is not performing a pure administrative function, but a judicial
one.

In the case of National Insurance Company Ltd. vs. Boghara Polyfab Private Ltd. 2, it was
held that the Court must identify and segregate the preliminary issues that may arise for
consideration in an application under Sec. 11. It contended that the issues which the Chief
Justice/his designate will have to decide are (i) Whether the party making the application has
approached the appropriate High Court. (ii) Whether there is an arbitration agreement and
whether the party who has applied under Sec. 11 of the Act, is a party to such an agreement. 3
After the Court is satisfied, it must put a stay on the suit and not relegate the matter to
arbitration should be decided by the court itself.

Where the intervention of the Court is sought for appointment of an Arbitral Tribunal under
Sec. 11, the duty of the Chief Justice or his designate is defined in SBP & Co. 4 This Court of
the Act into three categories, that is,

1 SBP and Company v. Patel Engineering Ltd , (2005) 8 S.C.C. 618.

2 National Insurance Company Limited vs. Boghara Polyfab Private Limited (2009) 1 SCC 267
3 Supra 9
4 Supra4
 (i) issues which the Chief Justice or his designate is bound to decide;

In the case in hand, the matter should not be referred to arbitration as the arbitration clause
was framed in such a manner so as to deter the party to initiate arbitration as the arbitrator
was to be solely appointed by the respondent. There was no bona fide relationship left
between the parties. So the bond of faith and trust is not left and thus the arbitrator appointed
by the Airport Authority cannot be relied upon.

Therefore, the civil suit of the petitioner must be accepted, so that the Hon’ble Court can use
its wide jurisdiction in the following matter.