Seriousness of an offence depends on its harmfulness

Decide arbitration plea in entirety

The Supreme Court, in the case of Hindustan Copper Ltd vs Monarch Gold Mining Ltd, has asked the high courts to consider arbitration petitions in their entirety than in piecemeal. Setting aside the precedent being followed by the Calcutta High Court in such cases, it said that the procedure followed by the HC was "legally impermissible". The function of the chief justice or his designate is judicial and they should deal with the arbitration petition in its entirety and "not by both making it a two-tier procedure," the apex court added. The HC judge, after holding that disputes have arisen for arbitration, had referred the issues to the chief justice for the appointment of an arbitrator. The chief justice, after following its earlier method adopted in Modi Korea Telecommunication Ltd vs Appcon Consultants Pvt Ltd, designated another judge to nominate the arbitrator. The designate judge appointed the arbitrator on July 8, 2011. This procedure was challenged by Hindustan Copper in the apex court on the grounds that the procedure adopted by the designate judge while hearing petition under Section 11 of the Arbitration and Conciliation Act 1996 was unknown in law. However, senior counsel Jaideep Gupta, appearing for the Registrar General of the HC, submitted that Section 11 did not put any embargo for piecemeal consideration of the matter. It is permissible that the designate judge considers the general power of the court to determine whether the preconditions for the exercise of that power have been fulfilled leaving the power of naming the arbitrator under Section 11 to the exclusive jurisdiction of the Chief Justice, he added. It accepted the stand of Additional Solicitor General Gourab Banerji, appearing for Hindustan Copper Ltd, that the power, which has been conferred exclusively under Section 11 on the Chief Justice, is the power of appointment or the power to name an arbitrator.

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