9911796707
TMI Blog1981 (9) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ious disposal of their disputes has by the decisions of the Courts been clothed with 'legalese' of unforeseeable complexity. This case amply demonstrates the same. A contract dated 4th April, 1972 for construction of a building was entered into between the appellant and the 1st respondent. Clause 47 of this contract incorporated an arbitration agreement between the parties. The differences and disputes having arisen between the parties to the contract, . the 1st respondent moved an application numbered as Suit No. 400 (A) of 1974 in the Delhi High Court under section 20 of the Act seeking a direction calling upon the appellant to file the arbitration agreement in the court and for a further direction to refer the disputes and the differences covered by the arbitration agreement to the arbitrator to be appointed by the Court. By the order dated August 14, 1974 the High Court appointed the 2nd respondent Shri M.L. Nanda, retired Chief Engineer, CPWD as the sole arbitrator to examine the differences and the disputes between the parties and to make an award in respect of them. When the reference was pending before the arbitrator, a petition No. OMP 133 of 1975 was moved by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. In the earlier directions by this Court it had been stated that the proceedings should commence within IS days and that the arbitrator "shall try to dispose of the same as expeditiously as possible." We direct the arbitrator, bearing in mind the concurrence of the counsel on both sides, that he shall conclude the proceedings within four months from today. A grievance is made that the arbitrator is calling for fresh pleadings which may perhaps be otiose since pleadings have already been filed by both sides before the earlier arbitrator Mr. Nanda. If any supplementary statement is to be filed it is certainly open to the parties to pursued the arbitrator to receive them in one week from today. The arbitrator will remember that already some evidence has been collected and he is only to consider and conclude. With this directive we dispose of the application." Pursuant to the directions given by this Court, the 3rd respondent commenced the arbitration proceedings from the stage where the same was left by the previous arbitrator. He gave opportunity to the parties to place before him supplementary pleadings if any, as well as additional evidence if any. He also examined some witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this petition, by an order in C.M.P. No. 14078 of 1977, the 'proceedings before Delhi High Court were stayed. The appellant filed a counter-affidavit and contested the petition inter alia contending that Delhi High Court would be the Court within the meaning of section 14 (2) in which award ought to have been and has rightly been filed. It was contended that if the court withdrew the proceedings to itself, the appellant would be denied the valuable right of appeal under the letters patent and a further appeal to this Court under Article 136 of the Constitution. The narrow question in this case therefore is whether in view of the circumstances herein delineated, which is the court which would have jurisdiction to entertain the award; in other words which is the court having jurisdiction in which the award should be filed by the arbitrator? At the outset relevant provisions of the Act may be noticed. The expression 'Court' has been defined in section 2 (c) as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or context, the dictionary meaning may not be applied to the expression 'Court.' Assuming that there is nothing repugnant in the subject or context the expression 'Court' in the Act would mean that civil court which would have jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject matter of a suit but does not include a Small Cause Court though it is a civil court except for the arbitration proceedings under section 21. Section 14 sub-section (2) provides for filing of the award in the court and in view of the definition of the expression 'Court' the arbitrator will have to file the award in that court which would have jurisdiction to entertain the suit forming the subject- matter of reference. Paraphrasing this clause in simple language it would mean that the court in which the suit involving a dispute in arbitration would be required to be filed alone would have jurisdiction to entertain the award. This will by necessary implication incorporate the provisions as to jurisdiction of court to entertain civil suits as set out in the Code of Civil Procedure, 1908. In fact, Section 41 of the Act provides that subject to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of all other courts only one court will have jurisdiction to deal with the proceedings incidental to the reference and the arbitration. Subsection (3) clearly points in this direction when it provides that all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the court where the award has been or may be filed and to no other court. Then comes sub- section (4). It opens with a non-obstante clause and is comprehensive in character. The non-obstante clause excludes anything anywhere contained in the whole Act or in any other law for the time being in force if it is contrary to or inconsistent with the substantive provision contained in sub-section (4). To that extent it carves out an exception to the general question of jurisdiction of the court in which award may be filed elsewhere provided in the Act in respect of the proceedings referred to in subsection (4). The provision contained in sub-section (4) will have an over-riding effect in relation to the filing of the award if the conditions therein prescribed are satisfied. If those conditions are satisfied the court other than the one envisaged in section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made in any reference to a court competent to entertain it, that court alone will have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall have to be made in that Court alone and in no other court. In this case an application was made to Delhi High Court under section 20 of the Act for a direction to file the arbitration agreement in the court. As provided in sub- section (2) of section 20, the proceeding was numbered as a suit. The suit ended in an order of reference to the arbitrator, the 2nd respondent. A subsequent application was made to Delhi High Court under section 5 read with section 11 of the Act for removal of the 2nd respondent as arbitrator. On this application being dismissed, the matter was brought to this Court in appeal being Civil Appeal No. 17 of 1977. By the decision of this Court in the appeal the 2nd respondent was removed as arbitrator and the 3rd respondent was appointed as sole arbitrator. Indisputably, therefore, the arbitrator was appointed by this Court. The order appointing the 3rd respondent as arbitrator gave a further direction that the arbitrator shall e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted evidence in view of the provision contained in sub-section (4) of section 31 the arbitrator will have to file the award in this Court and he rightly approached this Court upon a notice being given by the 1st respondent for filing the award in this Court. Curiously, an officer of this Court took it into his head to advise the arbitrator to file the Award in Delhi High Court without obtaining any direction of the Court. We must record our displeasure about this usurpation of jurisdiction of the Court by an officer of this Court. We say no more. In view of the fact that a reference was made by this Court to the 3rd respondent and that this court gave further direction about the manner and method of conducting the arbitration proceedings and fixed the time for completion of arbitration proceedings, this Court alone would have jurisdiction to entertain the award. The view which we are taking is completely borne out by the decision of this Court in State of Madhya Pradesh v. M/s Saith & Skelton (P) Ltd. (1). In that case the facts were that the State of Madhya Pradesh had entered into a contract with M/s Saith & Skelton (P) Ltd. for the supply and erection of penstocks for Gandhi Sag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saur, as that is the Court which will have jurisdiction to entertain the suit regarding the subject matter of the reference. We are not inclined to accept this contention of Mr. Shroff. It should be noted that the opening words of section 2 are "In this Act, unless there is anything repugnant in the subject or context". Therefore the expression "Court" will have to be understood as defined in section 2 (c) of the Act, only if there is nothing repugnant in the subject or context. It is in that light that the expression "Court" occurring in section 14 (2) of the Act will have to be understood and interpreted. It was this Court that appointed Shri V.S. Desai on January 29, 1971, by consent of parties, as an arbitrator and to make his award. It will be seen that no further directions were given in the said order which will indicate that this Court had not divested itself of its jurisdiction to deal with the award or matters arising out of the award. In fact, the indications are to the contrary. The direction in the order dated January 29, 1971, is that the arbitrator is "to make his award". Surely the law contemplates further steps to be taken after the award has been made, and quite n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made after the reference is made or during the pendency of the reference but may take within its sweep an application made earlier to the reference being made. And that if such an application is made that court alone will have jurisdiction to entertain subsequent applications. Proceeding from this basis Mr. Narula contended that the initial application under section 20 for filing the arbitration agreement was made to Delhi High Court and, therefore, all subsequent applications will have to be made to that court alone. In Kumbha Mawji's case a contention was raised before this Court that section 31 (4) is merely confined to applications during the course of pendency of a reference to arbitration. This Court after analysing the scheme of section 31, held that there is no conceivable reason why the legislature should have intended to confine the operation of sub-section (4) only to applications made during the pendency of an arbitration, if as is contended, the pharse 'in any reference' is to be taken as meaning 'in the course of a reference'. Ultimately this Court held that the phrase 'in any reference' used in sub-section (4) of section 31 means 'in the course of any reference', and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied. In an identical situation in M/s. Saith Skelton (P) Ltd. case, this Court held that the award has to be filed in this Court alone which would certainly negative an opportunity to appeal because this is the final court. Conceding as held by this Court in Garikapattl Veeraya v. N. Subbiah Choudhury, (2) that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences, by the view A we are taking such a right is not denied or defeated because the highest court to which one can come by way of appeal will entertain all contentions that may have to be canvassed on behalf of the appellant. The door of this Court is not being closed to the appellant. In fact the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. Therefore, we see no merit in this contention and it must be rejected. Accordingly we allow CMP 14079 of 1977 and declare that this Court is the Court having exclusive jurisdiction wherein the award dated November 11, 1977, should be filed and we further direct the 1st respondent to approach the Registra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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