Arbitration Act - disputes - Jurisdiction for setting aside award etc., - when arbitrator was appointed by High court - whether District Judge or High court - filed an application under sec.9 before High court - interim orders passed - Arbitrator was also appointed - Award was passed - sec.34 application filed for setting aside award before District Judge - objection as to Jurisdiction of District Judge - single judge allowed the same on the ground that since the parties already had submitted to the jurisdiction of this Court in its Ordinary Original Civil jurisdiction in connection with different earlier proceedings arising out of the said contract, as indicated above, the jurisdiction of the court of the learned District Judge at Jalpaiguri to entertain the said application for setting aside of the award was excluded under Section 42 of the said Act. - Apex court held that as per sec.2(1)(e) - court means only Principal District court and High court having original jurisdiction over the subject matter - sec.42 defines the jurisdiction of the court which first seized the matter , all subsequent applications has to be filed in that court only except few which were made before the Judicial authorities as chief justice etc., and further held that since all the proceedings initiated at High court including appointment of arbitrator - for setting aside award also has to be filed in High court but not in District court and as such dismissed the appeal=
which Court will have the jurisdiction
to entertain and decide an application under Section 34 of the Arbitration
and Conciliation Act, 1996 (hereinafter for short 'the Act'). =
“2(1)(e) “Court” means
the principal Civil Court of original jurisdiction
in a district, and includes the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same had been the
subject-matter of a suit, but does not include any civil court of a grade
inferior to such principal Civil Court, or any Court of small Causes.
42. Jurisdiction –
Notwithstanding anything contained elsewhere in this
Part or in any other law for the time being in force, where with respect to
an arbitration agreement any application under this Part has been made in a
Court, that Court alone shall have jurisdiction over the arbitral
proceedings and all subsequent applications arising out of that agreement
and the arbitral proceedings shall be made in that Court and in no other
Court.”=
In 1995-96 an Item Rate Tender was duly executed and signed between
the respondent Associated Contractors and the concerned Superintending
Engineer for execution of the work of excavation and lining of Teesta-
Jaldhaka Main Canal from Chainage 3 Kms. to 3.625 Kms. in Police Station:
Mal, District: Jalpaiguri, West Bengal.
Para 25 of the said
Item Rate Tender and Contract contained an arbitration clause.
3. The respondent herein filed an application under Section 9 of the
Arbitration Act, 1996 for interim orders in the High Court of Calcutta.
A
learned Single Judge of the High Court of Calcutta, after granting leave
under Clause 12 of the Letters Patent, passed an ad-interim ex-parte
injunction order.
The arbitration
proceedings culminated in an Award dated 30th June, 2004 by which the
claimant was awarded a sum of Rs.2,76,97,205.00 with 10% interest from 1st
July, 1998 till the date of the Award. If not paid within four months, the
same would then attract interest at the rate of 18% per annum. Costs were
also awarded in the sum of Rs.50,000/-.
The counter claims of the respondent were rejected.
6. On 21st September, 2004, the State of West Bengal filed an
application under Section 34 of the 1996 Act to set aside the arbitral
Award before the Principal Civil Court of the learned District Judge at
Jalpaiguri, West Bengal.
On 6th October, 2004, the learned District Judge
at Jalpaiguri issued notice to the other side directing the respondent to
appear and file its written objections on or before 4th January, 2004.
On
10th December, 2004, the respondent filed an application under Article 227
of the Constitution challenging the jurisdiction of the court of the
learned District Judge at Jalpaiguri.
By the impugned judgment dated 11th
April, 2005, a Single Judge of the High Court of Calcutta allowed the
petition under Article 227 holding:
“Accordingly, I hold that since the parties already had submitted to the
jurisdiction of this Court in its Ordinary Original Civil jurisdiction in
connection with different earlier proceedings arising out of the said
contract, as indicated above, the jurisdiction of the court of the learned
District Judge at Jalpaiguri to entertain the said application for setting
aside of the award was excluded under Section 42 of the said Act. Thus, I
find that this Court in its Ordinary Original Civil Jurisdiction is the
only court which can entertain an application for setting aside the said
award. The Revisional Application, thus, stands allowed. The impugned
notice is, thus, quashed.”
=
Mr. Bikas Ranjan Bhattacharya, learned senior counsel appearing
for the appellants cited the judgments in the case of National Aluminium
Co. Ltd. Vs. Pressteel & Fabrications (P) Ltd. And Anr. (2004) 1 SCC 540,
Bharat Coking Coal Ltd. Vs. Annapurna Construction (2008) 6 SCC 732, Bharat
Coking Coal Ltd. Vs. H.P. Biswas and Company (2008) 6 SCC 740 and Garhwal
Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency (2008) 6 SCC 741 in
support of his submission that it is only the Principal Civil Court, as
defined in Section 2(e) of the Act, which can entertain and decide an
application under Section 34 of the Act for setting
aside the Award.
3. Mr. Pradip Ghosh, learned senior counsel appearing for the
respondent on the other hand submitted that in the present case the
Calcutta High Court exercising jurisdiction under Clause 12 of the Letters
Patent had passed an interim order under Section 9 of the Act before
commencement of the arbitration proceedings and by virtue of Section 42 of
the Act, it is only the Calcutta High Court which will have jurisdiction to
entertain and decide an application under Section 34 of the Act for setting
aside the Award. In support of his submission, he relied upon judgment of
this Court in the case of Jindal Vijaynagar Steel (JSW Steel Ltd.) Vs.
Jindal Praxair Oxygen Co. Ltd. (2006) 11 SCC 521. =
In
our opinion, the law has to be clarified beyond doubt as to which Court
will have the jurisdiction to entertain and decide an application for
setting aside the Award under Section 34 of the Act read with Section 2(e)
of the Act and other provisions, including Section 42 of the Act.
We,
therefore, refer the matter to a larger Bench to decide this question of
law. =
Our conclusions therefore on Section 2(1)(e) and Section 42 of the
Arbitration Act, 1996 are as follows:
(a) Section 2(1)(e) contains an exhaustive definition marking out only
the Principal Civil Court of original jurisdiction in a district or a High
Court having original civil jurisdiction in the State, and no other court
as “court” for the purpose of Part-I of the Arbitration Act, 1996.
(b) The expression “with respect to an arbitration agreement” makes it
clear that Section 42 will apply to all applications made whether before or
during arbitral proceedings or after an Award is pronounced under Part-I of
the 1996 Act.
(c) However, Section 42 only applies to applications made under Part-I if
they are made to a court as defined. Since applications made under Section
8 are made to judicial authorities and since applications under Section 11
are made to the Chief Justice or his designate, the judicial authority and
the Chief Justice or his designate not being court as defined, such
applications would be outside Section 42.
(d) Section 9 applications being applications made to a court and Section
34 applications to set aside arbitral awards are applications which are
within Section 42.
(e) In no circumstances can the Supreme Court be “court” for the purposes
of Section 2(1)(e), and whether the Supreme Court does or does not retain
seisin after appointing an Arbitrator, applications will follow the first
application made before either a High Court having original jurisdiction in
the State or a Principal Civil court having original jurisdiction in the
district as the case may be.
(f) Section 42 will apply to applications made after the arbitral
proceedings have come to an end provided they are made under Part-I.
(g) If a first application is made to a court which is neither a
Principal Court of original jurisdiction in a district or a High Court
exercising original jurisdiction in a State, such application not being to
a court as defined would be outside Section 42. Also, an application made
to a court without subject matter jurisdiction would be outside Section 42.
The reference is answered accordingly.
On the facts of the present case, nothing has been shown as to how
the High Court of Calcutta does not possess jurisdiction.
It has been
mentioned above that leave under Clause 12 has been granted.
In the
circumstances of the present case, therefore, the judgment dated 11th
April, 2005 passed by the High Court of Calcutta is correct and does not
need any interference. Civil Appeal No.6691/2005 and Civil Appeal
No.4808/2013 are hereby dismissed.
2014- Sept. - Month - http://judis.nic.in/supremecourt/filename=41899
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6691 OF 2005
State of West Bengal & Ors. … Appellants
Versus
Associated Contractors …
Respondent
WITH
CIVIL APPEAL NO. 4808 OF 2013
J U D G M E N T
R.F. Nariman, J.
1. This matter has come before a three Judge Bench by an order of
reference of a Division Bench of this Hon’ble Court dated 7th April, 2010.
The referral order reads thus:
“In this appeal, the question that arises for
decision is which Court will have the jurisdiction
to entertain and decide an application under Section 34 of the Arbitration
and Conciliation Act, 1996 (hereinafter for short 'the Act').
2. Mr. Bikas Ranjan Bhattacharya, learned senior counsel appearing
for the appellants cited the judgments in the case of National Aluminium
Co. Ltd. Vs. Pressteel & Fabrications (P) Ltd. And Anr. (2004) 1 SCC 540,
Bharat Coking Coal Ltd. Vs. Annapurna Construction (2008) 6 SCC 732, Bharat
Coking Coal Ltd. Vs. H.P. Biswas and Company (2008) 6 SCC 740 and Garhwal
Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency (2008) 6 SCC 741 in
support of his submission that it is only the Principal Civil Court, as
defined in Section 2(e) of the Act, which can entertain and decide an
application under Section 34 of the Act for setting
aside the Award.
3. Mr. Pradip Ghosh, learned senior counsel appearing for the
respondent on the other hand submitted that in the present case the
Calcutta High Court exercising jurisdiction under Clause 12 of the Letters
Patent had passed an interim order under Section 9 of the Act before
commencement of the arbitration proceedings and by virtue of Section 42 of
the Act, it is only the Calcutta High Court which will have jurisdiction to
entertain and decide an application under Section 34 of the Act for setting
aside the Award. In support of his submission, he relied upon judgment of
this Court in the case of Jindal Vijaynagar Steel (JSW Steel Ltd.) Vs.
Jindal Praxair Oxygen Co. Ltd. (2006) 11 SCC 521.
4. We have perused the decisions cited by learned
counsel for the parties, which are all decisions of two Judges Bench. In
our opinion, the law has to be clarified beyond doubt as to which Court
will have the jurisdiction to entertain and decide an application for
setting aside the Award under Section 34 of the Act read with Section 2(e)
of the Act and other provisions, including Section 42 of the Act. We,
therefore, refer the matter to a larger Bench to decide this question of
law.
5. Let the papers of this case be placed before
Hon'ble the Chief Justice for constituting an appropriate Bench.
6. Till the disposal of the appeal by a larger Bench, the interim
order dated 17.05.2007 shall continue to operate.”
2. The facts necessary to decide this matter are as follows:
In 1995-96 an Item Rate Tender was duly executed and signed between
the respondent Associated Contractors and the concerned Superintending
Engineer for execution of the work of excavation and lining of Teesta-
Jaldhaka Main Canal from Chainage 3 Kms. to 3.625 Kms. in Police Station:
Mal, District: Jalpaiguri, West Bengal. Para 25 of the said Item Rate
Tender and Contract contained an arbitration clause.
3. The respondent herein filed an application under Section 9 of the
Arbitration Act, 1996 for interim orders in the High Court of Calcutta. A
learned Single Judge of the High Court of Calcutta, after granting leave
under Clause 12 of the Letters Patent, passed an ad-interim ex-parte
injunction order. This order was continued from time to time until it was
confirmed by an order dated 10th December, 1998. Meanwhile, in an
application under Section 11 of the Arbitration Act, Justice B.P. Banerjee
(retired), was appointed as an Arbitrator to adjudicate upon the disputes
between the parties. A Recalling Application filed by the State was
dismissed on 20th January, 2000.
4. An appeal was filed against the order dated 10th December, 1998,
confirming the ad-interim ex-parte injunction. On 5th July, 2000, delay in
filing the appeal was condoned and on 20th July, 2000, the interim order
was stayed by the Division Bench. The Arbitrator was, however, asked to
complete the proceedings before him which would go on uninterrupted.
5. Meanwhile, several orders were passed by the High Court regarding
remuneration of the Arbitrator and payment of the same. The arbitration
proceedings culminated in an Award dated 30th June, 2004 by which the
claimant was awarded a sum of Rs.2,76,97,205.00 with 10% interest from 1st
July, 1998 till the date of the Award. If not paid within four months, the
same would then attract interest at the rate of 18% per annum. Costs were
also awarded in the sum of Rs.50,000/-. The counter claims of the
respondent were rejected.
6. On 21st September, 2004, the State of West Bengal filed an
application under Section 34 of the 1996 Act to set aside the arbitral
Award before the Principal Civil Court of the learned District Judge at
Jalpaiguri, West Bengal. On 6th October, 2004, the learned District Judge
at Jalpaiguri issued notice to the other side directing the respondent to
appear and file its written objections on or before 4th January, 2004. On
10th December, 2004, the respondent filed an application under Article 227
of the Constitution challenging the jurisdiction of the court of the
learned District Judge at Jalpaiguri. By the impugned judgment dated 11th
April, 2005, a Single Judge of the High Court of Calcutta allowed the
petition under Article 227 holding:
“Accordingly, I hold that since the parties already had submitted to the
jurisdiction of this Court in its Ordinary Original Civil jurisdiction in
connection with different earlier proceedings arising out of the said
contract, as indicated above, the jurisdiction of the court of the learned
District Judge at Jalpaiguri to entertain the said application for setting
aside of the award was excluded under Section 42 of the said Act. Thus, I
find that this Court in its Ordinary Original Civil Jurisdiction is the
only court which can entertain an application for setting aside the said
award. The Revisional Application, thus, stands allowed. The impugned
notice is, thus, quashed.”
7. In an S.L.P. filed against this order, Mr. Anip Sachthey, learned
advocate for the State of West Bengal, argued that since the application
itself made under Section 9 was without jurisdiction, Section 42 of the
Arbitration Act would not be attracted. He argued that the reason the
Division Bench stayed the interim order passed under Section 9 was because
it was convinced prima facie that the High Court had no territorial
jurisdiction in the matter.
8. Mr. P.K. Ghosh, learned senior advocate for the respondent,
contended that Clause 12 leave had already been granted and a number of
orders have been passed after the ad-interim ex-parte order dated 22nd
July, 1998 by the learned Single Judge of the High Court. There is, in
fact, no order of any court which has pronounced upon jurisdiction, and
therefore, Section 42 would necessarily apply to the facts of the case.
9. As the matter has been referred to us for an authoritative
pronouncement on Section 2(1)(e) and Section 42 it will be important to set
out Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 which read
as follows:
“2(1)(e) “Court” means the principal Civil Court of original jurisdiction
in a district, and includes the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same had been the
subject-matter of a suit, but does not include any civil court of a grade
inferior to such principal Civil Court, or any Court of small Causes.
42. Jurisdiction – Notwithstanding anything contained elsewhere in this
Part or in any other law for the time being in force, where with respect to
an arbitration agreement any application under this Part has been made in a
Court, that Court alone shall have jurisdiction over the arbitral
proceedings and all subsequent applications arising out of that agreement
and the arbitral proceedings shall be made in that Court and in no other
Court.”
10. Section 2(1)(e) had its genesis in Section 2(c) of the 1940 Act.
Section 42 had its genesis in Section 31(4) of the 1940 Act. These
sections of the 1940 Act read as follows:
“2(c) "Court" means a Civil Court having jurisdiction to decide the
questions forming the subject- matter of the reference if the same had been
the subject- matter of a suit, but does not, except for the purpose of
arbitration proceedings under section 21, include a Small Cause Court;
31(4) Notwithstanding anything contained elsewhere in this Act or in any
other law for the time being in force, where in any reference any
application under this Act has been made in a Court competent to entertain
it, that Court alone shall have jurisdiction over the arbitration
proceedings-, and all subsequent applications arising, out of that
reference, and the arbitration proceedings shall be made in that Court and
in no other Court.”
11. It will be noticed that Section 42 is in almost the same terms as its
predecessor Section except that the words “in any reference” are
substituted with the wider expression “with respect to an arbitration
agreement”. It will also be noticed that the expression “has been made in a
court competent to entertain it”, is no longer there in Section 42. These
two changes are of some significance as will be pointed out later. Section
42
starts with a non-obstante clause which does
away with anything which may be inconsistent with the Section either in
Part-I of the Arbitration Act, 1996 or in any other law for the time being
in force. The expression “with respect to an arbitration agreement” widens
the scope of Section 42 to include all matters which directly or indirectly
pertain to an arbitration agreement. Applications made to Courts which are
before, during or after arbitral proceedings made under Part-I of the Act
are all covered by Section 42. But an essential ingredient of the Section
is that an application under Part-I must be made in a court.
12. Part-1 of the Arbitration Act, 1996, contemplates various
applications being made with respect to arbitration agreements. For
example, an application under Section 8 can be made before a judicial
authority before which an action is brought in a matter which is the
subject of an arbitration agreement. It is obvious that applications made
under Section 8 need not be to courts, and for that reason alone, such
applications would be outside the scope of Section 42. It was held in P.
Anand Gajapathi Raju & Ors. v. P.V.G. Raju (Dead) & Ors., (2000) 4 SCC 539
at para 8 that applications under Section 8 would be outside the ken of
Section 42. We respectfully agree, but for the reason that such
applications are made before “judicial authorities” and not “courts” as
defined. Also, a party who applies under Section 8 does not apply as
dominus litis, but has to go wherever the `action’ may have been filed.
Thus, an application under Section 8 is parasitical in nature - it has to
be filed only before the judicial authority before whom a proceeding is
filed by someone else. Further, the “judicial authority” may or may not be
a Court. And a Court before which an action may be brought may not be a
Principal Civil Court of original jurisdiction or a High Court exercising
original jurisdiction. This brings us then to the definition of “court”
under Section 2(1)(e) of the Act.
13. It will be noticed that whereas the earlier definition contained in
the 1940 Act spoke of any civil court, the definition in the 1996 Act fixes
“court” to be the Principal Civil Court of original jurisdiction in a
district or the High Court in exercise of its ordinary original civil
jurisdiction. Section 2(1)(e) further goes on to say that a court would
not include any civil court of a grade inferior to such Principal Civil
Court, or a Small Causes Court.
14. It will be noticed that the definition is an exhaustive one as it
uses the expression “means and includes”. It is settled law that such
definitions are meant to be exhaustive in nature – See P. Kasilingam & Ors.
v. P.S.G. College of Technology & Ors., (1995) Suppl. 2 SCC 348 at para 19.
15. A recent judgment of this Hon’ble Court reported in Executive
Engineer, Road Development Division No. III, Panvel & Anr. v. Atlanta
Limited, AIR 2014 SC 1093 has taken the view that Section 2(1)(e) contains
a scheme different from that contained in Section 15 of the Code of Civil
Procedure. Section 15 requires all suits to be filed in the lowest grade
of court. This Hon’ble Court has construed Section 2(1)(e) and said that
where a High Court exercises ordinary original civil jurisdiction over a
district, the High Court will have preference to the Principal Civil Court
of original jurisdiction in that district. In that case, one of the
parties moved an application under Section 34 before the District Judge,
Thane. On the same day, the opposite party moved an application before the
High Court of Bombay for setting aside some of the directions contained in
the Award. In the circumstances, it was decided that the “Court” for the
purpose of Section 42 would be the High Court and not the District Court.
Several reasons were given for this. Firstly, the very inclusion of the
High Court in the definition would be rendered nugatory if the above
conclusion was not to be accepted, because the Principal Civil Court of
original jurisdiction in a district is always a court lower in grade than
the High Court, and such District Judge being lower in grade than the High
Court would always exclude the High Court from adjudicating upon the
matter. Secondly, the provisions of the Arbitration Act leave no room for
any doubt that it is the superior most court exercising original
jurisdiction which has been chosen to adjudicate disputes arising out of
arbitration agreements. We respectfully concur with the reasoning contained
in this judgment.
16. Similar is the position with regard to applications made under
Section 11 of the Arbitration Act. In Rodemadan India Ltd. v.
International Trade Expo Centre Ltd., (2006) 11 SCC 651, a Designated Judge
of this Hon’ble Court following the seven Judge Bench in S.B.P. and Co. v.
Patel Engineering Ltd. & Anr., (2005) 8 SCC 618, held that instead of the
court, the power to appoint arbitrators contained in Section 11 is
conferred on the Chief Justice or his delegate. In fact, the seven Judge
bench held:
“13. It is common ground that the Act has adopted the UNCITRAL Model Law on
International Commercial Arbitration. But at the same time, it has made
some departures from the model law. Section 11 is in the place of
Article 11 of the Model Law. The Model Law provides for the making of a
request under Article 11 to "the court or other authority specified in
Article 6 to take the necessary measure". The words in Section 11 of the
Act, are "the Chief Justice or the person or institution designated by
him". The fact that instead of the court, the powers are conferred on the
Chief Justice, has to be appreciated in the context of the statute. 'Court'
is defined in the Act to be the principal civil court of original
jurisdiction of the district and includes the High Court in exercise of its
ordinary original civil jurisdiction. The principal civil court of original
jurisdiction is normally the District Court. The High Courts in India
exercising ordinary original civil jurisdiction are not too many. So in
most of the States the concerned court would be the District Court.
Obviously, the Parliament did not want to confer the power on the District
Court, to entertain a request for appointing an arbitrator or for
constituting an arbitral tribunal under Section 11 of the Act. It has to be
noted that under Section 9 of the Act, the District Court or the High Court
exercising original jurisdiction, has the power to make interim orders
prior to, during or even post arbitration. It has also the power to
entertain a challenge to the award that may ultimately be made. The framers
of the statute must certainly be taken to have been conscious of the
definition of 'court' in the Act. It is easily possible to contemplate that
they did not want the power under Section 11 to be conferred on the
District Court or the High Court exercising original jurisdiction. The
intention apparently was to confer the power on the highest judicial
authority in the State and in the country, on Chief Justices of High Courts
and on the Chief Justice of India. Such a provision is necessarily intended
to add the greatest credibility to the arbitral process. The argument that
the power thus conferred on the Chief Justice could not even be delegated
to any other Judge of the High Court or of the Supreme Court, stands
negatived only because of the power given to designate another. The
intention of the legislature appears to be clear that it wanted to ensure
that the power under Section 11(6) of the Act was exercised by the highest
judicial authority in the concerned State or in the country. This is to
ensure the utmost authority to the process of constituting the arbitral
tribunal.
18. It is true that the power under Section 11(6) of the Act is not
conferred on the Supreme Court or on the High Court, but it is conferred on
the Chief Justice of India or the Chief Justice of the High Court. One
possible reason for specifying the authority as the Chief Justice, could be
that if it were merely the conferment of the power on the High Court, or
the Supreme Court, the matter would be governed by the normal procedure of
that Court, including the right of appeal and the Parliament obviously
wanted to avoid that situation, since one of the objects was to restrict
the interference by Courts in the arbitral process. Therefore, the power
was conferred on the highest judicial authority in the country and in the
State in their capacities as Chief Justices. They have been conferred the
power or the right to pass an order contemplated by Section 11 of the Act.
We have already seen that it is not possible to envisage that the power is
conferred on the Chief Justice as persona designata. Therefore, the fact
that the power is conferred on the Chief Justice, and not on the court
presided over by him is not sufficient to hold that the power thus
conferred is merely an administrative power and is not a judicial power.”
It is obvious that Section 11 applications are not to be moved before the
“court” as defined but before the Chief Justice either of the High Court or
of the Supreme Court, as the case may be, or their delegates. This is
despite the fact that the Chief Justice or his delegate have now to decide
judicially and not administratively. Again, Section 42 would not apply to
applications made before the Chief Justice or his delegate for the simple
reason that the Chief Justice or his delegate is not “court” as defined by
Section 2(1)(e). The said view was reiterated somewhat differently in
Pandey & Co. Builders (P) Ltd. v. State of Bihar & Anr., (2007) 1 SCC 467
at Paras 9, 23-26.
17. That the Chief Justice does not represent the High Court or Supreme
Court as the case may be is also clear from Section 11(10):
“The Chief Justice may make such scheme as he may deem appropriate
for dealing with matters entrusted by sub-section (4) or sub-section(5) or
sub-section (6) to him.”
The scheme referred to in this sub-section is a scheme by which the Chief
Justice may provide for the procedure to be followed in cases dealt with by
him under Section 11. This again shows that it is not the High Court or the
Supreme Court rules that are to be followed but a separate set of rules
made by the Chief Justice for the purposes of Section 11.
Sub-section 12 of Section 11 reads as follows:
“(a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8)
and (10) arise in an international commercial arbitration, the reference to
‘‘Chief Justice'' in those sub-sections shall be construed as a reference
to the ‘‘Chief Justice of India''.
(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8)
and (10) arise in any other arbitration, the reference to “Chief Justice”
in those sub-sections shall be construed as a reference to the Chief
Justice of the High Court within whose local limits the principal Civil
Court referred to in clause (e) of sub-section (1) of section 2 is situate
and, where the High Court itself is the Court referred to in that clause,
to the Chief Justice of that High Court.”
It is obvious that Section 11(12)(b) was necessitated in order that it be
clear that the Chief Justice of “the High Court” will only be such Chief
Justice within whose local limits the Principal Civil Court referred to in
Section 2(1)(e) is situate and the Chief Justice of that High Court which
is referred to in the inclusive part of the definition contained in Section
2(1)(e). This sub-section also does not in any manner make the Chief
Justice or his designate “court” for the purpose of Section 42. Again,
the decision of the Chief Justice or his designate, not being the decision
of the Supreme Court or the High Court, as the case may be, has no
precedential value being a decision of a judicial authority which is not a
Court of Record.
18. In contrast with applications moved under Section 8 and 11 of the
Act, applications moved under Section 9 are to the “court” as defined for
the passing of interim orders before or during arbitral proceedings or at
any time after the making of the arbitral Award but before its enforcement.
In case an application is made, as has been made in the present case,
before a particular court, Section 42 will apply to preclude the making of
all subsequent applications under Part-I to any court except the court to
which an application has been made under Section 9 of the Act.
19. One of the questions that arises in the reference order is whether
the Supreme Court is a court within the meaning of Section 2(1)(e) of the
Act. In two judgments under the 1940 Act, namely, State of Madhya Pradesh
v. Saith and Skelton (P) Ltd., (1972) 1 SCC 702 and Guru Nanak Foundation
v. Rattan Singh & Sons, (1981) 4 SCC 634, the Supreme Court took the view
that where an Arbitrator was appointed by the Supreme Court itself and the
Supreme Court retained seisin over the arbitration proceedings, the Supreme
Court would be “court” for the purpose of Section 2(c) of the 1940 Act.
These judgments were distinguished in National Aluminium Co. Ltd. v.
Pressteel & Fabrications (P) Ltd. & Anr., (2004) 1 SCC 540, Bharat Coking
Coal Limited v. Annapurna Construction, (2008) 6 SCC 732 and Garhwal Mandal
Vikas Nigam Ltd. v. Krishna Travel Agency, (2008) 6 SCC 741. The first of
these judgments was a judgment under the 1996 Act wherein it was held that
when the Supreme Court appoints an Arbitrator but does not retain seisin
over the proceedings, the Supreme Court will not be “court” within the
meaning of Section 2(1)(e) of the Act. Similar is the position in the
third judgment, the Garhwal case. Even under the 1940 Act, in Bharat
Coking Coal, the same distinction was made and it was held that as the
Supreme Court did not retain seisin over the proceedings after appointing
an Arbitrator, the Supreme Court would not be “court” within the meaning of
the Arbitration Act, 1940.
20. As noted above, the definition of “court” in Section 2(1)(e) is
materially different from its predecessor contained in Section 2(c) of the
1940 Act. There are a variety of reasons as to why the Supreme Court
cannot possibly be considered to be “court” within the meaning of Section
2(1)(e) even if it retains seisin over the arbitral proceedings. Firstly,
as noted above, the definition is exhaustive and recognizes only one of two
possible courts that could be “court” for the purpose of Section 2(1)(e).
Secondly, under the 1940 Act, the expression “civil court” has been held to
be wide enough to include an appellate court and, therefore would include
the Supreme Court as was held in the two judgments aforementioned under the
1940 Act. Even though this proposition itself is open to doubt, as the
Supreme Court exercising jurisdiction under Article 136 is not an ordinary
Appellate Court, suffice it to say that even this reason does not obtain
under the present definition, which speaks of either the Principal Civil
Court or the High Court exercising original jurisdiction. Thirdly, if an
application would have to be preferred to the Supreme Court directly, the
appeal that is available so far as applications under Sections 9 and 34 are
concerned, provided for under Section 37 of the Act, would not be
available. Any further appeal to the Supreme Court under Article 136 would
also not be available. The only other argument that could possibly be made
is that all definition sections are subject to context to the contrary.
The context of Section 42 does not in any manner lead to a conclusion that
the word “court” in Section 42 should be construed otherwise than as
defined. The context of Section 42 is merely to see that one court alone
shall have jurisdiction over all applications with respect to arbitration
agreements which context does not in any manner enable the Supreme Court to
become a “court” within the meaning of Section 42. It has aptly been
stated that the rule of forum conveniens is expressly excluded by section
42. See: JSW Steel Ltd. vs. Jindal Praxair Oxygen Co.Ltd., (2006) 11 SCC
521 at para 59. Section 42 is also markedly different from Section 31(4) of
the 1940 Act in that the expression “has been made in a court competent to
entertain it” does not find place in Section 42. This is for the reason
that, under Section 2(1)(e), the competent Court is fixed as the Principal
Civil Court exercising original jurisdiction or a High Court exercising
original civil jurisdiction, and no other court. For all these reasons, we
hold that the decisions under the 1940 Act would not obtain under the 1996
Act, and the Supreme Court cannot be “court” for the purposes of Section
42.
21. One other question that may arise is as to whether Section 42 applies
after the arbitral proceedings come to an end. It has already been held by
us that the expression “with respect to an arbitration agreement” are words
of wide import and would take in all applications made before during or
after the arbitral proceedings are over. In an earlier judgment, Kumbha
Mawji v. Dominion of India, (1953) SCR 878, the question which arose before
the Supreme Court was whether the expression used in Section 31(4) of the
1940 Act “in any reference” would include matters that are after the
arbitral proceedings are over and have culminated in an award. It was held
that the words “in any reference” cannot be taken to mean “in the course of
a reference”, but mean “in the matter of a reference” and that such phrase
is wide enough and comprehensive enough to cover an application made after
the arbitration is completed and the final Award is made. (See Paras 891-
893). As has been noticed above, the expression used in Section 42 is wider
being “with respect to an arbitration agreement” and would certainly
include such applications.
22. One more question that may arise under Section 42 is whether Section
42 would apply in cases where an application made in a court is found to be
without jurisdiction. Under Section 31(4) of the old Act, it has been held
in FCI represented by Managing Director & Anr. v. A.M. Ahmed & Co.,
through MD & Anr., (2001) 10 SCC 532 at para 6 and Neycer India Ltd. v.
GNB Ceramics Ltd., (2002) 9 SCC 489 at para 3 that Section 31(4) of the
1940 Act would not be applicable if it were found that an application was
to be made before a court which had no jurisdiction. In Jatinder Nath v.
Chopra Land Developers Pvt. Ltd., (2007) 11 SCC 453 at para 9 and Rajasthan
State Electrical Board v. Universal Petrol Chemical Limited, (2009) 3 SCC
107 at paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corporation,
2013 (9) SCC 32 at para 32, it was held that where the agreement between
the parties restricted jurisdiction to only one particular court, that
court alone would have jurisdiction as neither Section 31(4) nor Section 42
contains a non-obstante clause wiping out a contrary agreement between the
parties. It has thus been held that applications preferred to courts
outside the exclusive court agreed to by parties would also be without
jurisdiction.
23. Even under Section 42 itself, a Designated Judge has held in HBM
Print Ltd. v. Scantrans India (Pvt.) Ltd., (2009) 17 SCC 338, that where
the Chief Justice has no jurisdiction under Section 11, Section 42 will not
apply. This is quite apart from the fact that Section 42, as has been held
above, will not apply to Section 11 applications at all.
24. If an application were to be preferred to a Court which is not a
Principal Civil Court of original jurisdiction in a district, or a High
Court exercising original jurisdiction to decide questions forming the
subject matter of an arbitration if the same had been the subject matter of
a suit, then obviously such application would be outside the four corners
of Section 42. If, for example, an application were to be filed in a court
inferior to a Principal Civil Court, or to a High Court which has no
original jurisdiction, or if an application were to be made to a court
which has no subject matter jurisdiction, such application would be outside
Section 42 and would not debar subsequent applications from being filed in
a court other than such court.
25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the
Arbitration Act, 1996 are as follows:
(a) Section 2(1)(e) contains an exhaustive definition marking out only
the Principal Civil Court of original jurisdiction in a district or a High
Court having original civil jurisdiction in the State, and no other court
as “court” for the purpose of Part-I of the Arbitration Act, 1996.
(b) The expression “with respect to an arbitration agreement” makes it
clear that Section 42 will apply to all applications made whether before or
during arbitral proceedings or after an Award is pronounced under Part-I of
the 1996 Act.
(c) However, Section 42 only applies to applications made under Part-I if
they are made to a court as defined. Since applications made under Section
8 are made to judicial authorities and since applications under Section 11
are made to the Chief Justice or his designate, the judicial authority and
the Chief Justice or his designate not being court as defined, such
applications would be outside Section 42.
(d) Section 9 applications being applications made to a court and Section
34 applications to set aside arbitral awards are applications which are
within Section 42.
(e) In no circumstances can the Supreme Court be “court” for the purposes
of Section 2(1)(e), and whether the Supreme Court does or does not retain
seisin after appointing an Arbitrator, applications will follow the first
application made before either a High Court having original jurisdiction in
the State or a Principal Civil court having original jurisdiction in the
district as the case may be.
(f) Section 42 will apply to applications made after the arbitral
proceedings have come to an end provided they are made under Part-I.
(g) If a first application is made to a court which is neither a
Principal Court of original jurisdiction in a district or a High Court
exercising original jurisdiction in a State, such application not being to
a court as defined would be outside Section 42. Also, an application made
to a court without subject matter jurisdiction would be outside Section 42.
The reference is answered accordingly.
26. On the facts of the present case, nothing has been shown as to how
the High Court of Calcutta does not possess jurisdiction. It has been
mentioned above that leave under Clause 12 has been granted. In the
circumstances of the present case, therefore, the judgment dated 11th
April, 2005 passed by the High Court of Calcutta is correct and does not
need any interference. Civil Appeal No.6691/2005 and Civil Appeal
No.4808/2013 are hereby dismissed.
..............................................CJI
(R.M. Lodha)
………………………………..J.
(Kurian Joseph)
………………………………..J.
(R.F. Nariman)
New Delhi,
September 10, 2014
which Court will have the jurisdiction
to entertain and decide an application under Section 34 of the Arbitration
and Conciliation Act, 1996 (hereinafter for short 'the Act'). =
“2(1)(e) “Court” means
the principal Civil Court of original jurisdiction
in a district, and includes the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same had been the
subject-matter of a suit, but does not include any civil court of a grade
inferior to such principal Civil Court, or any Court of small Causes.
42. Jurisdiction –
Notwithstanding anything contained elsewhere in this
Part or in any other law for the time being in force, where with respect to
an arbitration agreement any application under this Part has been made in a
Court, that Court alone shall have jurisdiction over the arbitral
proceedings and all subsequent applications arising out of that agreement
and the arbitral proceedings shall be made in that Court and in no other
Court.”=
the respondent Associated Contractors and the concerned Superintending
Engineer for execution of the work of excavation and lining of Teesta-
Jaldhaka Main Canal from Chainage 3 Kms. to 3.625 Kms. in Police Station:
Mal, District: Jalpaiguri, West Bengal.
Para 25 of the said
Item Rate Tender and Contract contained an arbitration clause.
3. The respondent herein filed an application under Section 9 of the
Arbitration Act, 1996 for interim orders in the High Court of Calcutta.
A
learned Single Judge of the High Court of Calcutta, after granting leave
under Clause 12 of the Letters Patent, passed an ad-interim ex-parte
injunction order.
The arbitration
proceedings culminated in an Award dated 30th June, 2004 by which the
claimant was awarded a sum of Rs.2,76,97,205.00 with 10% interest from 1st
July, 1998 till the date of the Award. If not paid within four months, the
same would then attract interest at the rate of 18% per annum. Costs were
also awarded in the sum of Rs.50,000/-.
The counter claims of the respondent were rejected.
6. On 21st September, 2004, the State of West Bengal filed an
application under Section 34 of the 1996 Act to set aside the arbitral
Award before the Principal Civil Court of the learned District Judge at
Jalpaiguri, West Bengal.
On 6th October, 2004, the learned District Judge
at Jalpaiguri issued notice to the other side directing the respondent to
appear and file its written objections on or before 4th January, 2004.
On
10th December, 2004, the respondent filed an application under Article 227
of the Constitution challenging the jurisdiction of the court of the
learned District Judge at Jalpaiguri.
By the impugned judgment dated 11th
April, 2005, a Single Judge of the High Court of Calcutta allowed the
petition under Article 227 holding:
“Accordingly, I hold that since the parties already had submitted to the
jurisdiction of this Court in its Ordinary Original Civil jurisdiction in
connection with different earlier proceedings arising out of the said
contract, as indicated above, the jurisdiction of the court of the learned
District Judge at Jalpaiguri to entertain the said application for setting
aside of the award was excluded under Section 42 of the said Act. Thus, I
find that this Court in its Ordinary Original Civil Jurisdiction is the
only court which can entertain an application for setting aside the said
award. The Revisional Application, thus, stands allowed. The impugned
notice is, thus, quashed.”
=
Mr. Bikas Ranjan Bhattacharya, learned senior counsel appearing
for the appellants cited the judgments in the case of National Aluminium
Co. Ltd. Vs. Pressteel & Fabrications (P) Ltd. And Anr. (2004) 1 SCC 540,
Bharat Coking Coal Ltd. Vs. Annapurna Construction (2008) 6 SCC 732, Bharat
Coking Coal Ltd. Vs. H.P. Biswas and Company (2008) 6 SCC 740 and Garhwal
Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency (2008) 6 SCC 741 in
support of his submission that it is only the Principal Civil Court, as
defined in Section 2(e) of the Act, which can entertain and decide an
application under Section 34 of the Act for setting
aside the Award.
3. Mr. Pradip Ghosh, learned senior counsel appearing for the
respondent on the other hand submitted that in the present case the
Calcutta High Court exercising jurisdiction under Clause 12 of the Letters
Patent had passed an interim order under Section 9 of the Act before
commencement of the arbitration proceedings and by virtue of Section 42 of
the Act, it is only the Calcutta High Court which will have jurisdiction to
entertain and decide an application under Section 34 of the Act for setting
aside the Award. In support of his submission, he relied upon judgment of
this Court in the case of Jindal Vijaynagar Steel (JSW Steel Ltd.) Vs.
Jindal Praxair Oxygen Co. Ltd. (2006) 11 SCC 521. =
our opinion, the law has to be clarified beyond doubt as to which Court
will have the jurisdiction to entertain and decide an application for
setting aside the Award under Section 34 of the Act read with Section 2(e)
of the Act and other provisions, including Section 42 of the Act.
We,
therefore, refer the matter to a larger Bench to decide this question of
law. =
Our conclusions therefore on Section 2(1)(e) and Section 42 of the
Arbitration Act, 1996 are as follows:
(a) Section 2(1)(e) contains an exhaustive definition marking out only
the Principal Civil Court of original jurisdiction in a district or a High
Court having original civil jurisdiction in the State, and no other court
as “court” for the purpose of Part-I of the Arbitration Act, 1996.
(b) The expression “with respect to an arbitration agreement” makes it
clear that Section 42 will apply to all applications made whether before or
during arbitral proceedings or after an Award is pronounced under Part-I of
the 1996 Act.
(c) However, Section 42 only applies to applications made under Part-I if
they are made to a court as defined. Since applications made under Section
8 are made to judicial authorities and since applications under Section 11
are made to the Chief Justice or his designate, the judicial authority and
the Chief Justice or his designate not being court as defined, such
applications would be outside Section 42.
(d) Section 9 applications being applications made to a court and Section
34 applications to set aside arbitral awards are applications which are
within Section 42.
(e) In no circumstances can the Supreme Court be “court” for the purposes
of Section 2(1)(e), and whether the Supreme Court does or does not retain
seisin after appointing an Arbitrator, applications will follow the first
application made before either a High Court having original jurisdiction in
the State or a Principal Civil court having original jurisdiction in the
district as the case may be.
(f) Section 42 will apply to applications made after the arbitral
proceedings have come to an end provided they are made under Part-I.
(g) If a first application is made to a court which is neither a
Principal Court of original jurisdiction in a district or a High Court
exercising original jurisdiction in a State, such application not being to
a court as defined would be outside Section 42. Also, an application made
to a court without subject matter jurisdiction would be outside Section 42.
The reference is answered accordingly.
the High Court of Calcutta does not possess jurisdiction.
It has been
mentioned above that leave under Clause 12 has been granted.
In the
circumstances of the present case, therefore, the judgment dated 11th
April, 2005 passed by the High Court of Calcutta is correct and does not
need any interference. Civil Appeal No.6691/2005 and Civil Appeal
No.4808/2013 are hereby dismissed.
2014- Sept. - Month - http://judis.nic.in/supremecourt/filename=41899
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6691 OF 2005
State of West Bengal & Ors. … Appellants
Versus
Associated Contractors …
Respondent
WITH
CIVIL APPEAL NO. 4808 OF 2013
J U D G M E N T
R.F. Nariman, J.
1. This matter has come before a three Judge Bench by an order of
reference of a Division Bench of this Hon’ble Court dated 7th April, 2010.
The referral order reads thus:
“In this appeal, the question that arises for
decision is which Court will have the jurisdiction
to entertain and decide an application under Section 34 of the Arbitration
and Conciliation Act, 1996 (hereinafter for short 'the Act').
2. Mr. Bikas Ranjan Bhattacharya, learned senior counsel appearing
for the appellants cited the judgments in the case of National Aluminium
Co. Ltd. Vs. Pressteel & Fabrications (P) Ltd. And Anr. (2004) 1 SCC 540,
Bharat Coking Coal Ltd. Vs. Annapurna Construction (2008) 6 SCC 732, Bharat
Coking Coal Ltd. Vs. H.P. Biswas and Company (2008) 6 SCC 740 and Garhwal
Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency (2008) 6 SCC 741 in
support of his submission that it is only the Principal Civil Court, as
defined in Section 2(e) of the Act, which can entertain and decide an
application under Section 34 of the Act for setting
aside the Award.
3. Mr. Pradip Ghosh, learned senior counsel appearing for the
respondent on the other hand submitted that in the present case the
Calcutta High Court exercising jurisdiction under Clause 12 of the Letters
Patent had passed an interim order under Section 9 of the Act before
commencement of the arbitration proceedings and by virtue of Section 42 of
the Act, it is only the Calcutta High Court which will have jurisdiction to
entertain and decide an application under Section 34 of the Act for setting
aside the Award. In support of his submission, he relied upon judgment of
this Court in the case of Jindal Vijaynagar Steel (JSW Steel Ltd.) Vs.
Jindal Praxair Oxygen Co. Ltd. (2006) 11 SCC 521.
4. We have perused the decisions cited by learned
counsel for the parties, which are all decisions of two Judges Bench. In
our opinion, the law has to be clarified beyond doubt as to which Court
will have the jurisdiction to entertain and decide an application for
setting aside the Award under Section 34 of the Act read with Section 2(e)
of the Act and other provisions, including Section 42 of the Act. We,
therefore, refer the matter to a larger Bench to decide this question of
law.
5. Let the papers of this case be placed before
Hon'ble the Chief Justice for constituting an appropriate Bench.
6. Till the disposal of the appeal by a larger Bench, the interim
order dated 17.05.2007 shall continue to operate.”
2. The facts necessary to decide this matter are as follows:
In 1995-96 an Item Rate Tender was duly executed and signed between
the respondent Associated Contractors and the concerned Superintending
Engineer for execution of the work of excavation and lining of Teesta-
Jaldhaka Main Canal from Chainage 3 Kms. to 3.625 Kms. in Police Station:
Mal, District: Jalpaiguri, West Bengal. Para 25 of the said Item Rate
Tender and Contract contained an arbitration clause.
3. The respondent herein filed an application under Section 9 of the
Arbitration Act, 1996 for interim orders in the High Court of Calcutta. A
learned Single Judge of the High Court of Calcutta, after granting leave
under Clause 12 of the Letters Patent, passed an ad-interim ex-parte
injunction order. This order was continued from time to time until it was
confirmed by an order dated 10th December, 1998. Meanwhile, in an
application under Section 11 of the Arbitration Act, Justice B.P. Banerjee
(retired), was appointed as an Arbitrator to adjudicate upon the disputes
between the parties. A Recalling Application filed by the State was
dismissed on 20th January, 2000.
4. An appeal was filed against the order dated 10th December, 1998,
confirming the ad-interim ex-parte injunction. On 5th July, 2000, delay in
filing the appeal was condoned and on 20th July, 2000, the interim order
was stayed by the Division Bench. The Arbitrator was, however, asked to
complete the proceedings before him which would go on uninterrupted.
5. Meanwhile, several orders were passed by the High Court regarding
remuneration of the Arbitrator and payment of the same. The arbitration
proceedings culminated in an Award dated 30th June, 2004 by which the
claimant was awarded a sum of Rs.2,76,97,205.00 with 10% interest from 1st
July, 1998 till the date of the Award. If not paid within four months, the
same would then attract interest at the rate of 18% per annum. Costs were
also awarded in the sum of Rs.50,000/-. The counter claims of the
respondent were rejected.
6. On 21st September, 2004, the State of West Bengal filed an
application under Section 34 of the 1996 Act to set aside the arbitral
Award before the Principal Civil Court of the learned District Judge at
Jalpaiguri, West Bengal. On 6th October, 2004, the learned District Judge
at Jalpaiguri issued notice to the other side directing the respondent to
appear and file its written objections on or before 4th January, 2004. On
10th December, 2004, the respondent filed an application under Article 227
of the Constitution challenging the jurisdiction of the court of the
learned District Judge at Jalpaiguri. By the impugned judgment dated 11th
April, 2005, a Single Judge of the High Court of Calcutta allowed the
petition under Article 227 holding:
“Accordingly, I hold that since the parties already had submitted to the
jurisdiction of this Court in its Ordinary Original Civil jurisdiction in
connection with different earlier proceedings arising out of the said
contract, as indicated above, the jurisdiction of the court of the learned
District Judge at Jalpaiguri to entertain the said application for setting
aside of the award was excluded under Section 42 of the said Act. Thus, I
find that this Court in its Ordinary Original Civil Jurisdiction is the
only court which can entertain an application for setting aside the said
award. The Revisional Application, thus, stands allowed. The impugned
notice is, thus, quashed.”
7. In an S.L.P. filed against this order, Mr. Anip Sachthey, learned
advocate for the State of West Bengal, argued that since the application
itself made under Section 9 was without jurisdiction, Section 42 of the
Arbitration Act would not be attracted. He argued that the reason the
Division Bench stayed the interim order passed under Section 9 was because
it was convinced prima facie that the High Court had no territorial
jurisdiction in the matter.
8. Mr. P.K. Ghosh, learned senior advocate for the respondent,
contended that Clause 12 leave had already been granted and a number of
orders have been passed after the ad-interim ex-parte order dated 22nd
July, 1998 by the learned Single Judge of the High Court. There is, in
fact, no order of any court which has pronounced upon jurisdiction, and
therefore, Section 42 would necessarily apply to the facts of the case.
9. As the matter has been referred to us for an authoritative
pronouncement on Section 2(1)(e) and Section 42 it will be important to set
out Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 which read
as follows:
“2(1)(e) “Court” means the principal Civil Court of original jurisdiction
in a district, and includes the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same had been the
subject-matter of a suit, but does not include any civil court of a grade
inferior to such principal Civil Court, or any Court of small Causes.
42. Jurisdiction – Notwithstanding anything contained elsewhere in this
Part or in any other law for the time being in force, where with respect to
an arbitration agreement any application under this Part has been made in a
Court, that Court alone shall have jurisdiction over the arbitral
proceedings and all subsequent applications arising out of that agreement
and the arbitral proceedings shall be made in that Court and in no other
Court.”
10. Section 2(1)(e) had its genesis in Section 2(c) of the 1940 Act.
Section 42 had its genesis in Section 31(4) of the 1940 Act. These
sections of the 1940 Act read as follows:
“2(c) "Court" means a Civil Court having jurisdiction to decide the
questions forming the subject- matter of the reference if the same had been
the subject- matter of a suit, but does not, except for the purpose of
arbitration proceedings under section 21, include a Small Cause Court;
31(4) Notwithstanding anything contained elsewhere in this Act or in any
other law for the time being in force, where in any reference any
application under this Act has been made in a Court competent to entertain
it, that Court alone shall have jurisdiction over the arbitration
proceedings-, and all subsequent applications arising, out of that
reference, and the arbitration proceedings shall be made in that Court and
in no other Court.”
11. It will be noticed that Section 42 is in almost the same terms as its
predecessor Section except that the words “in any reference” are
substituted with the wider expression “with respect to an arbitration
agreement”. It will also be noticed that the expression “has been made in a
court competent to entertain it”, is no longer there in Section 42. These
two changes are of some significance as will be pointed out later. Section
42
starts with a non-obstante clause which does
away with anything which may be inconsistent with the Section either in
Part-I of the Arbitration Act, 1996 or in any other law for the time being
in force. The expression “with respect to an arbitration agreement” widens
the scope of Section 42 to include all matters which directly or indirectly
pertain to an arbitration agreement. Applications made to Courts which are
before, during or after arbitral proceedings made under Part-I of the Act
are all covered by Section 42. But an essential ingredient of the Section
is that an application under Part-I must be made in a court.
12. Part-1 of the Arbitration Act, 1996, contemplates various
applications being made with respect to arbitration agreements. For
example, an application under Section 8 can be made before a judicial
authority before which an action is brought in a matter which is the
subject of an arbitration agreement. It is obvious that applications made
under Section 8 need not be to courts, and for that reason alone, such
applications would be outside the scope of Section 42. It was held in P.
Anand Gajapathi Raju & Ors. v. P.V.G. Raju (Dead) & Ors., (2000) 4 SCC 539
at para 8 that applications under Section 8 would be outside the ken of
Section 42. We respectfully agree, but for the reason that such
applications are made before “judicial authorities” and not “courts” as
defined. Also, a party who applies under Section 8 does not apply as
dominus litis, but has to go wherever the `action’ may have been filed.
Thus, an application under Section 8 is parasitical in nature - it has to
be filed only before the judicial authority before whom a proceeding is
filed by someone else. Further, the “judicial authority” may or may not be
a Court. And a Court before which an action may be brought may not be a
Principal Civil Court of original jurisdiction or a High Court exercising
original jurisdiction. This brings us then to the definition of “court”
under Section 2(1)(e) of the Act.
13. It will be noticed that whereas the earlier definition contained in
the 1940 Act spoke of any civil court, the definition in the 1996 Act fixes
“court” to be the Principal Civil Court of original jurisdiction in a
district or the High Court in exercise of its ordinary original civil
jurisdiction. Section 2(1)(e) further goes on to say that a court would
not include any civil court of a grade inferior to such Principal Civil
Court, or a Small Causes Court.
14. It will be noticed that the definition is an exhaustive one as it
uses the expression “means and includes”. It is settled law that such
definitions are meant to be exhaustive in nature – See P. Kasilingam & Ors.
v. P.S.G. College of Technology & Ors., (1995) Suppl. 2 SCC 348 at para 19.
15. A recent judgment of this Hon’ble Court reported in Executive
Engineer, Road Development Division No. III, Panvel & Anr. v. Atlanta
Limited, AIR 2014 SC 1093 has taken the view that Section 2(1)(e) contains
a scheme different from that contained in Section 15 of the Code of Civil
Procedure. Section 15 requires all suits to be filed in the lowest grade
of court. This Hon’ble Court has construed Section 2(1)(e) and said that
where a High Court exercises ordinary original civil jurisdiction over a
district, the High Court will have preference to the Principal Civil Court
of original jurisdiction in that district. In that case, one of the
parties moved an application under Section 34 before the District Judge,
Thane. On the same day, the opposite party moved an application before the
High Court of Bombay for setting aside some of the directions contained in
the Award. In the circumstances, it was decided that the “Court” for the
purpose of Section 42 would be the High Court and not the District Court.
Several reasons were given for this. Firstly, the very inclusion of the
High Court in the definition would be rendered nugatory if the above
conclusion was not to be accepted, because the Principal Civil Court of
original jurisdiction in a district is always a court lower in grade than
the High Court, and such District Judge being lower in grade than the High
Court would always exclude the High Court from adjudicating upon the
matter. Secondly, the provisions of the Arbitration Act leave no room for
any doubt that it is the superior most court exercising original
jurisdiction which has been chosen to adjudicate disputes arising out of
arbitration agreements. We respectfully concur with the reasoning contained
in this judgment.
16. Similar is the position with regard to applications made under
Section 11 of the Arbitration Act. In Rodemadan India Ltd. v.
International Trade Expo Centre Ltd., (2006) 11 SCC 651, a Designated Judge
of this Hon’ble Court following the seven Judge Bench in S.B.P. and Co. v.
Patel Engineering Ltd. & Anr., (2005) 8 SCC 618, held that instead of the
court, the power to appoint arbitrators contained in Section 11 is
conferred on the Chief Justice or his delegate. In fact, the seven Judge
bench held:
“13. It is common ground that the Act has adopted the UNCITRAL Model Law on
International Commercial Arbitration. But at the same time, it has made
some departures from the model law. Section 11 is in the place of
Article 11 of the Model Law. The Model Law provides for the making of a
request under Article 11 to "the court or other authority specified in
Article 6 to take the necessary measure". The words in Section 11 of the
Act, are "the Chief Justice or the person or institution designated by
him". The fact that instead of the court, the powers are conferred on the
Chief Justice, has to be appreciated in the context of the statute. 'Court'
is defined in the Act to be the principal civil court of original
jurisdiction of the district and includes the High Court in exercise of its
ordinary original civil jurisdiction. The principal civil court of original
jurisdiction is normally the District Court. The High Courts in India
exercising ordinary original civil jurisdiction are not too many. So in
most of the States the concerned court would be the District Court.
Obviously, the Parliament did not want to confer the power on the District
Court, to entertain a request for appointing an arbitrator or for
constituting an arbitral tribunal under Section 11 of the Act. It has to be
noted that under Section 9 of the Act, the District Court or the High Court
exercising original jurisdiction, has the power to make interim orders
prior to, during or even post arbitration. It has also the power to
entertain a challenge to the award that may ultimately be made. The framers
of the statute must certainly be taken to have been conscious of the
definition of 'court' in the Act. It is easily possible to contemplate that
they did not want the power under Section 11 to be conferred on the
District Court or the High Court exercising original jurisdiction. The
intention apparently was to confer the power on the highest judicial
authority in the State and in the country, on Chief Justices of High Courts
and on the Chief Justice of India. Such a provision is necessarily intended
to add the greatest credibility to the arbitral process. The argument that
the power thus conferred on the Chief Justice could not even be delegated
to any other Judge of the High Court or of the Supreme Court, stands
negatived only because of the power given to designate another. The
intention of the legislature appears to be clear that it wanted to ensure
that the power under Section 11(6) of the Act was exercised by the highest
judicial authority in the concerned State or in the country. This is to
ensure the utmost authority to the process of constituting the arbitral
tribunal.
18. It is true that the power under Section 11(6) of the Act is not
conferred on the Supreme Court or on the High Court, but it is conferred on
the Chief Justice of India or the Chief Justice of the High Court. One
possible reason for specifying the authority as the Chief Justice, could be
that if it were merely the conferment of the power on the High Court, or
the Supreme Court, the matter would be governed by the normal procedure of
that Court, including the right of appeal and the Parliament obviously
wanted to avoid that situation, since one of the objects was to restrict
the interference by Courts in the arbitral process. Therefore, the power
was conferred on the highest judicial authority in the country and in the
State in their capacities as Chief Justices. They have been conferred the
power or the right to pass an order contemplated by Section 11 of the Act.
We have already seen that it is not possible to envisage that the power is
conferred on the Chief Justice as persona designata. Therefore, the fact
that the power is conferred on the Chief Justice, and not on the court
presided over by him is not sufficient to hold that the power thus
conferred is merely an administrative power and is not a judicial power.”
It is obvious that Section 11 applications are not to be moved before the
“court” as defined but before the Chief Justice either of the High Court or
of the Supreme Court, as the case may be, or their delegates. This is
despite the fact that the Chief Justice or his delegate have now to decide
judicially and not administratively. Again, Section 42 would not apply to
applications made before the Chief Justice or his delegate for the simple
reason that the Chief Justice or his delegate is not “court” as defined by
Section 2(1)(e). The said view was reiterated somewhat differently in
Pandey & Co. Builders (P) Ltd. v. State of Bihar & Anr., (2007) 1 SCC 467
at Paras 9, 23-26.
17. That the Chief Justice does not represent the High Court or Supreme
Court as the case may be is also clear from Section 11(10):
“The Chief Justice may make such scheme as he may deem appropriate
for dealing with matters entrusted by sub-section (4) or sub-section(5) or
sub-section (6) to him.”
The scheme referred to in this sub-section is a scheme by which the Chief
Justice may provide for the procedure to be followed in cases dealt with by
him under Section 11. This again shows that it is not the High Court or the
Supreme Court rules that are to be followed but a separate set of rules
made by the Chief Justice for the purposes of Section 11.
Sub-section 12 of Section 11 reads as follows:
“(a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8)
and (10) arise in an international commercial arbitration, the reference to
‘‘Chief Justice'' in those sub-sections shall be construed as a reference
to the ‘‘Chief Justice of India''.
(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8)
and (10) arise in any other arbitration, the reference to “Chief Justice”
in those sub-sections shall be construed as a reference to the Chief
Justice of the High Court within whose local limits the principal Civil
Court referred to in clause (e) of sub-section (1) of section 2 is situate
and, where the High Court itself is the Court referred to in that clause,
to the Chief Justice of that High Court.”
It is obvious that Section 11(12)(b) was necessitated in order that it be
clear that the Chief Justice of “the High Court” will only be such Chief
Justice within whose local limits the Principal Civil Court referred to in
Section 2(1)(e) is situate and the Chief Justice of that High Court which
is referred to in the inclusive part of the definition contained in Section
2(1)(e). This sub-section also does not in any manner make the Chief
Justice or his designate “court” for the purpose of Section 42. Again,
the decision of the Chief Justice or his designate, not being the decision
of the Supreme Court or the High Court, as the case may be, has no
precedential value being a decision of a judicial authority which is not a
Court of Record.
18. In contrast with applications moved under Section 8 and 11 of the
Act, applications moved under Section 9 are to the “court” as defined for
the passing of interim orders before or during arbitral proceedings or at
any time after the making of the arbitral Award but before its enforcement.
In case an application is made, as has been made in the present case,
before a particular court, Section 42 will apply to preclude the making of
all subsequent applications under Part-I to any court except the court to
which an application has been made under Section 9 of the Act.
19. One of the questions that arises in the reference order is whether
the Supreme Court is a court within the meaning of Section 2(1)(e) of the
Act. In two judgments under the 1940 Act, namely, State of Madhya Pradesh
v. Saith and Skelton (P) Ltd., (1972) 1 SCC 702 and Guru Nanak Foundation
v. Rattan Singh & Sons, (1981) 4 SCC 634, the Supreme Court took the view
that where an Arbitrator was appointed by the Supreme Court itself and the
Supreme Court retained seisin over the arbitration proceedings, the Supreme
Court would be “court” for the purpose of Section 2(c) of the 1940 Act.
These judgments were distinguished in National Aluminium Co. Ltd. v.
Pressteel & Fabrications (P) Ltd. & Anr., (2004) 1 SCC 540, Bharat Coking
Coal Limited v. Annapurna Construction, (2008) 6 SCC 732 and Garhwal Mandal
Vikas Nigam Ltd. v. Krishna Travel Agency, (2008) 6 SCC 741. The first of
these judgments was a judgment under the 1996 Act wherein it was held that
when the Supreme Court appoints an Arbitrator but does not retain seisin
over the proceedings, the Supreme Court will not be “court” within the
meaning of Section 2(1)(e) of the Act. Similar is the position in the
third judgment, the Garhwal case. Even under the 1940 Act, in Bharat
Coking Coal, the same distinction was made and it was held that as the
Supreme Court did not retain seisin over the proceedings after appointing
an Arbitrator, the Supreme Court would not be “court” within the meaning of
the Arbitration Act, 1940.
20. As noted above, the definition of “court” in Section 2(1)(e) is
materially different from its predecessor contained in Section 2(c) of the
1940 Act. There are a variety of reasons as to why the Supreme Court
cannot possibly be considered to be “court” within the meaning of Section
2(1)(e) even if it retains seisin over the arbitral proceedings. Firstly,
as noted above, the definition is exhaustive and recognizes only one of two
possible courts that could be “court” for the purpose of Section 2(1)(e).
Secondly, under the 1940 Act, the expression “civil court” has been held to
be wide enough to include an appellate court and, therefore would include
the Supreme Court as was held in the two judgments aforementioned under the
1940 Act. Even though this proposition itself is open to doubt, as the
Supreme Court exercising jurisdiction under Article 136 is not an ordinary
Appellate Court, suffice it to say that even this reason does not obtain
under the present definition, which speaks of either the Principal Civil
Court or the High Court exercising original jurisdiction. Thirdly, if an
application would have to be preferred to the Supreme Court directly, the
appeal that is available so far as applications under Sections 9 and 34 are
concerned, provided for under Section 37 of the Act, would not be
available. Any further appeal to the Supreme Court under Article 136 would
also not be available. The only other argument that could possibly be made
is that all definition sections are subject to context to the contrary.
The context of Section 42 does not in any manner lead to a conclusion that
the word “court” in Section 42 should be construed otherwise than as
defined. The context of Section 42 is merely to see that one court alone
shall have jurisdiction over all applications with respect to arbitration
agreements which context does not in any manner enable the Supreme Court to
become a “court” within the meaning of Section 42. It has aptly been
stated that the rule of forum conveniens is expressly excluded by section
42. See: JSW Steel Ltd. vs. Jindal Praxair Oxygen Co.Ltd., (2006) 11 SCC
521 at para 59. Section 42 is also markedly different from Section 31(4) of
the 1940 Act in that the expression “has been made in a court competent to
entertain it” does not find place in Section 42. This is for the reason
that, under Section 2(1)(e), the competent Court is fixed as the Principal
Civil Court exercising original jurisdiction or a High Court exercising
original civil jurisdiction, and no other court. For all these reasons, we
hold that the decisions under the 1940 Act would not obtain under the 1996
Act, and the Supreme Court cannot be “court” for the purposes of Section
42.
21. One other question that may arise is as to whether Section 42 applies
after the arbitral proceedings come to an end. It has already been held by
us that the expression “with respect to an arbitration agreement” are words
of wide import and would take in all applications made before during or
after the arbitral proceedings are over. In an earlier judgment, Kumbha
Mawji v. Dominion of India, (1953) SCR 878, the question which arose before
the Supreme Court was whether the expression used in Section 31(4) of the
1940 Act “in any reference” would include matters that are after the
arbitral proceedings are over and have culminated in an award. It was held
that the words “in any reference” cannot be taken to mean “in the course of
a reference”, but mean “in the matter of a reference” and that such phrase
is wide enough and comprehensive enough to cover an application made after
the arbitration is completed and the final Award is made. (See Paras 891-
893). As has been noticed above, the expression used in Section 42 is wider
being “with respect to an arbitration agreement” and would certainly
include such applications.
22. One more question that may arise under Section 42 is whether Section
42 would apply in cases where an application made in a court is found to be
without jurisdiction. Under Section 31(4) of the old Act, it has been held
in FCI represented by Managing Director & Anr. v. A.M. Ahmed & Co.,
through MD & Anr., (2001) 10 SCC 532 at para 6 and Neycer India Ltd. v.
GNB Ceramics Ltd., (2002) 9 SCC 489 at para 3 that Section 31(4) of the
1940 Act would not be applicable if it were found that an application was
to be made before a court which had no jurisdiction. In Jatinder Nath v.
Chopra Land Developers Pvt. Ltd., (2007) 11 SCC 453 at para 9 and Rajasthan
State Electrical Board v. Universal Petrol Chemical Limited, (2009) 3 SCC
107 at paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corporation,
2013 (9) SCC 32 at para 32, it was held that where the agreement between
the parties restricted jurisdiction to only one particular court, that
court alone would have jurisdiction as neither Section 31(4) nor Section 42
contains a non-obstante clause wiping out a contrary agreement between the
parties. It has thus been held that applications preferred to courts
outside the exclusive court agreed to by parties would also be without
jurisdiction.
23. Even under Section 42 itself, a Designated Judge has held in HBM
Print Ltd. v. Scantrans India (Pvt.) Ltd., (2009) 17 SCC 338, that where
the Chief Justice has no jurisdiction under Section 11, Section 42 will not
apply. This is quite apart from the fact that Section 42, as has been held
above, will not apply to Section 11 applications at all.
24. If an application were to be preferred to a Court which is not a
Principal Civil Court of original jurisdiction in a district, or a High
Court exercising original jurisdiction to decide questions forming the
subject matter of an arbitration if the same had been the subject matter of
a suit, then obviously such application would be outside the four corners
of Section 42. If, for example, an application were to be filed in a court
inferior to a Principal Civil Court, or to a High Court which has no
original jurisdiction, or if an application were to be made to a court
which has no subject matter jurisdiction, such application would be outside
Section 42 and would not debar subsequent applications from being filed in
a court other than such court.
25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the
Arbitration Act, 1996 are as follows:
(a) Section 2(1)(e) contains an exhaustive definition marking out only
the Principal Civil Court of original jurisdiction in a district or a High
Court having original civil jurisdiction in the State, and no other court
as “court” for the purpose of Part-I of the Arbitration Act, 1996.
(b) The expression “with respect to an arbitration agreement” makes it
clear that Section 42 will apply to all applications made whether before or
during arbitral proceedings or after an Award is pronounced under Part-I of
the 1996 Act.
(c) However, Section 42 only applies to applications made under Part-I if
they are made to a court as defined. Since applications made under Section
8 are made to judicial authorities and since applications under Section 11
are made to the Chief Justice or his designate, the judicial authority and
the Chief Justice or his designate not being court as defined, such
applications would be outside Section 42.
(d) Section 9 applications being applications made to a court and Section
34 applications to set aside arbitral awards are applications which are
within Section 42.
(e) In no circumstances can the Supreme Court be “court” for the purposes
of Section 2(1)(e), and whether the Supreme Court does or does not retain
seisin after appointing an Arbitrator, applications will follow the first
application made before either a High Court having original jurisdiction in
the State or a Principal Civil court having original jurisdiction in the
district as the case may be.
(f) Section 42 will apply to applications made after the arbitral
proceedings have come to an end provided they are made under Part-I.
(g) If a first application is made to a court which is neither a
Principal Court of original jurisdiction in a district or a High Court
exercising original jurisdiction in a State, such application not being to
a court as defined would be outside Section 42. Also, an application made
to a court without subject matter jurisdiction would be outside Section 42.
The reference is answered accordingly.
26. On the facts of the present case, nothing has been shown as to how
the High Court of Calcutta does not possess jurisdiction. It has been
mentioned above that leave under Clause 12 has been granted. In the
circumstances of the present case, therefore, the judgment dated 11th
April, 2005 passed by the High Court of Calcutta is correct and does not
need any interference. Civil Appeal No.6691/2005 and Civil Appeal
No.4808/2013 are hereby dismissed.
..............................................CJI
(R.M. Lodha)
………………………………..J.
(Kurian Joseph)
………………………………..J.
(R.F. Nariman)
New Delhi,
September 10, 2014
