- 1 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 PRESENT THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE C M JOSHI WRIT APPEAL NO. 688 OF 2025 (GM-RES) BETWEEN: 1. VDB PROJECTS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT NO. 842/A, 3RD FLOOR 100 FT. ROAD, INDIRANAGAR BANGALORE - 560 038 REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE P. VASANT RAI. …APPELLANT (BY SRI ROHAN VEERANNA TIGADI, ADVOCATE) AND: 1. BRUHATH BENGALURU MAHANAGARA PALIKE CORPORATION BUILDINGS HUDSON CIRCLE - 560 002 REPRESENTED BY ITS CHIEF COMMISSIONER. 2. THE CHIEF ENGINEER SWD, BRUHATH BENGALURU MAHANAGARA PALIKE Digitally signed by PRABHAKAR SWETHA KRISHNAN Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 9TH FLOOR, JAYANAGARA SHOPPING COMPLEX 3. THE INSTITUTION OF ENGINEERS (INDIA), AN ISO 9001: 2015 CERTIFIED ORGANISATION (ESTABLISHED 1920, INCORPORATED BY ROYAL CHARTER 1936) NO. 8, GOKHALE ROAD KOLKATA - 700 020. 4. DR. I. SATYANARAYANA RAJU, FIE ARBITRATOR, H.NO. 6-3-903/A/1, FLAT-201 CHINMAYI RESIDENCY SOMAJIGUDA HYDERABAD - 500 082. …RESPONDENTS (BY SRI B.S. SATYANAND, ADVOCATE FOR R-1 & 2 V/O. DTD.25.07.2025 NOTICE TO R-3 & 4 IS DISPENSED WITH) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE JUDGMENT DATED 17/02/2025 IN WRIT PETITION No.19317/2024 AND CONSEQUENTLY DIRECT THE APPLICATION UNDER SECTION 16 OF THE ARBITRATION AND CONCILIATION ACT, 1996 TO BE CONSIDERED BY THE 4TH RESPONDENT/ ARBITRAL TRIBUNAL IN A TIME BOUND MANNER & ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT (PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE) 1. Issue notice. 2. Mr.B.S.Sathyananda, learned counsel accepts notice for respondent Nos.1 and 2. 3. Notice to respondent Nos.3 and 4 is dispensed with. 4. For the reasons stated in the application-I.A No.1/2025, the same is allowed. The delay in filing the appeal is condoned. 5. The appellant – VDB Projects Private Limited – has filed the present appeal impugning an order dated 17.02.2025 passed by learned Single Judge in Writ Petition No.19317/2024, whereby the petition was disposed of by permitting Bruhath Bengaluru Mahanagara Palike [BBMP] to file an application under Section 16 of the Arbitration and Conciliation Act, 1996 (A&C Act) before - 4 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 respondent Nso.3 [The Institution of Engineers (India)] for challenging the jurisdiction of the Arbitrator. BBMP had filed the aforesaid writ petition challenging an order dated 04.04.2024 passed by respondent No.3 appointing the Arbitrator to resolve the dispute between the parties. 6. It is relevant to note that the Institution of Engineers (India) had appointed the Arbitrator pursuant to the application filed by the appellant. It is BBMP’s case that respondent No.3 is not one of seven organisations, which could be approached for appointment of the arbitrator, in terms of the arbitration agreement between the parties. 7. The learned Single Judge has declined to entertain the writ petition and dismissed the same, by relegating the parties to file an application before the Institution of Engineers (India), in terms of Section 16(2) of the A&C Act. 8. The learned counsel for the appellant confined his submissions to assail the impugned order to limited extent that an application under Section 16 is required to be made before the Arbitral Tribunal and not the institution appointing the arbitrator. - 5 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 The learned counsel submits that an application under Section 16(2) of the A&C Act is required to be made before the Arbitral Tribunal and therefore, relegating the parties to make such an application before the Institution of Engineers (India), is unsustainable. 9. Section 16 of the A&C Act is set out below: "16. Competence of arbitral tribunal to rule on its jurisdiction.—(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,— (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. - 6 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34." 10. It is clear from the plain reading of Section 16 of the A&C Act, that an application to challenge the jurisdiction of an Arbitral Tribunal is required to be made in the first instance before the Arbitral Tribunal. This follows from the Rule of "kompetenz kompetenz”, which postulates that the Arbitral Tribunal is empowered to rule on its own jurisdiction . 11. Clearly, the operative directions issued by the learned Single Judge are flawed. 12. The learned counsel appearing for the BBMP submits that the present appeal is not maintainable in view of the order dated 08.04.2025 passed by the learned Single Judge in Review Petition No.131 of 2025. He submits that the appellant had preferred the - 7 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 said review petition, seeking review of the impugned order dated 17.02.2025. However, the said review petition was disposed of, by a consent order, whereby the parties agreed to agitate their grievance as directed in terms of the order dated 17.02.2025. He submits that the impugned order merges with the review order and therefore, the present appeal is not maintainable. 13. We find no merit in the aforesaid contention advanced by the learned counsel for respondent Nos.1 and 2. First, the impugned order does not merge with the order disposing the review petition. Second, and more importantly, the respondent No. 3 does not have any jurisdiction to decide an application under Section 16 of the A&C Act. Any order passed by respondent No.3 on such an application would be unsustainable. It is also well settled that the parties cannot confer jurisdiction by consent. 14. In view of the above, the present appeal is allowed. The impugned order is modified to the extent of relegating the parties to challenge the jurisdiction of the Arbitral Tribunal by making an application under Section 16 of the A&C Act before the Arbitral - 8 - HC-KAR NC: 2025:KHC:28574-DB WA No. 688 of 2025 Tribunal instead of respondent No.3 as directed by learned Single Judge. 15. The appeal is disposed of in the aforesaid observations. 16. Pending applications are also disposed of. Sd/- (VIBHU BAKHRU) CHIEF JUSTICE Sd/- (C M JOSHI) JUDGE KPS List No.: 1 Sl No.: 19