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TMI Blog2013 (3) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the Indian Companies Act, 1956 having its registered office at the address mentioned in the cause title. Both Respondents are officials of the Public Works Department of the Government of Maharashtra. 4. In October, 1998, the Respondents invited tenders from the prequalified bidders on Build, Operate and Transfer basis (BOT) for the work of construction of Mumbra Bypass off MumbaiPune Road, National Highway No. 4 from K.m. 133/800 and joining existing MumbaiPune Road at K.m. 138/200 for a total length of 5.41 k.m. in Thane District. The Petitioner is carrying on business of infrastructure development. The Petitioner submitted its bid on 12th April, 1999, which was accepted by the Respondents on 26th May, 2000. On 12th July, 2000 an agreement was arrived at between the Petitioner and the Respondents at Mumbai which was executed at Mumbai. A supplementary agreement dated 11th May, 2005 was executed between parties at Panvel. 5. The Petitioner states that the disputes and differences arose between parties in respect of the works which were awarded to the Petitioner under the agreement. There were also disputes with regarding suspension of toll Collection for the period from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that Section 31 of the Arbitration Act, 1940 and Section 42 of the Arbitration and Conciliation Act, 1996 deal with this aspect of the matter. Mr. Vashi submits that, both the Original Side of this Court and the District Court at Thane in this case are approached on the grounds that they are principal Court of original civil jurisdiction. They are Civil Courts. The proceeding under Section 34 of the Arbitration and Conciliation Act, 1996 is a proceeding within the meaning of Section 24(1)(a) and Section 24(1)(b) of the Code of Civil Procedure, 1908. Thus, it is a proceeding before a civil Court. In view thereof, this Application under Section 24 of the Code of Civil Procedure, 1908 is maintainable and this Court, therefore, should allow the Petition and transfer the proceedings from the District Court at Thane to the Original Side of this Court. There is no inconvenience to the parties as the Respondents are based at Mumbai. 11. In support of his submissions, Mr. Vashi has placed heavy reliance upon the Judgment of the Hon'ble Supreme Court in the case of Kumbha Mawji V/s Dominion of India, reported in AIR 1953 SC 313. Mr. Vashi has also placed reliance on a Judgment of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide of this Court, namely, Arbitration Petition No. 1158 of 2012 should be transferred to the District Court, Thane in exercise of these powers by me. In the further alternative, Mr. Kumbhakoni submits that the present Petition should not be treated as one filed under Section 24 of the Code of Civil Procedure, 1908 but, this Court in exercise of its inherent powers should consolidate both applications so as to avoid conflicting Judgments and Orders and simultaneous trial. Mr. Kumbhakoni submits that in this case, the Civil Court can decide the question of jurisdiction by considering the subject matter of the arbitration and as if the same is a subject matter of a civil suit. If that test is applied, it is only the District Court at Thane which can be approached to challenge the Award. Mr. Kumbhakoni submits that his concession in the alternative is on the footing that only the procedural provisions of the Code of Civil Procedure are applicable. Mr. Kumbhakoni also relies upon Section 15 of the Code of Civil Procedure and submits that the Court at Thane is the lowest in terms of that provision and in such circumstances, the proceedings before the District Court need not be transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. [(3) For the purposes of this section, (a)Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b)"proceeding" includes a proceeding for the execution of a decree or order.] (4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. [(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.] 17. A bare perusal thereof would indicate that, the general power of transfer and withdraw can be exercised on the application of any of the parties or suomoto. The High Court or the District Court may transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to and competent to try or dispose of the same and equally withdraw such Suit pending in any Court subordinate to it and try and dispose off the same. The term 'proceeding' has been defined to include a proceeding in the execution of a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered this question from the angle of the nature of the proceeding and expressed the view that the proceeding was a civil proceeding to which the procedure for suits could, with the aid of s. 141, C.P.C. be applied. If indeed the term "proceeding" in s. 24 is not confined to a civil proceeding there is no need whatsoever of taking the aid of S. 141, C.P.C." 19. In the decision relied upon by Mr. Vashi, the Supreme Court was concerned with interpretation of Section 31 of the Arbitration Act, 1940. In paragraph 10 to 13 of this decision, the Supreme Court observed as under: "10. The third question which remains for consideration is whether subsection (4) of section 31 of the Indian Arbitration Act of 1940 applies only where the first application under the Act was made during the course of pendency of a reference to arbitration or also to a case like the present one where such first application is made after the completion of the arbitration and on the making of an award. As already stated, the learned Judges on appeal did not deal with this question. The trial Judge, however, considered the matter, and held that the above provision related only to an application made d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the Court in which the award under the agreement has been, or may be, filed and by no other Court". Subsection (3) is intended to provide that all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings are to be made only in one court, and lays on the concerned party the obligation to do so. Then comes subsection (4), the object of which apparently is to go further than subsection (3), that is, not merely casting on the party concerned an obligation to file all applications in one court but vesting exclusive jurisdiction for such applications in the court in which the first application has been already made. 13. Thus it will be seen on a comprehensive view of section 31 that while the first subsection determines the jurisdiction of the court in which an award can be filed, subsections (2), (3) and (4) are intended to make that jurisdiction effective in three different ways, (1) by vesting in one court the authority to deal with all questions regarding the validity, effect or existence of an award or an arbitration agreement, (2) by casting on the persons concerned the obligation to file all applications regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil 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 subjectmatter 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." 22. Mr. Kumbhakoni then submits that Section 5 of the Act of 1996 deals with the extent of judicial intervention. Mr. Kumbhakoni submits that in matters covered by PartI of the Arbitration and Conciliation Act, 1996, no judicial authority shall intervene except where so provided in this part. 23. In AIR 2000 SC 1886, the Supreme Court was considering the ambit and scope of Section 8 of the Arbitration and Conciliation Act, 1996. In that regard in paragraph 4, what the Supreme Court observed, is as under: "Part I of the new Act deals with domestic arbitrations. Section 5 which is contained in Part I of the new Act, defines the extent of judicial intervention in arbitration proceedings. It says that notwithstanding anything contained in any other law for the time being in force, in matters gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned. I am not concerned in this case with that aspect as the fundamental and basic issue before me is applicability of Section 24 of the Code of Civil Procedure, 1908 to enable transfer of proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. Once, the Supreme Court holds that the term 'proceeding' is used in widest and comprehensive term and would include every adjudication before a Court, then, it is clear that proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 being filed in the Civil Court, the power to transfer them are vested in terms of Section 24 of the Code of Civil Procedure, 1908 in the District Court or High Court. There is nothing in the 1996 Act which would rule out applicability of Section 24 of the Code of Civil Procedure as urged by Mr. Kumbhakoni. On the other hand, in order to avoid conflicting Judgments and Orders, when the same parties challenged the same Award but in different Civil Courts, the power of transfer will only further the object of resolution of disputes by recourse to arbitration. 27. Once, the above conclusion is reached, then, reliance placed by Mr. Vashi on the Judgment of the learned Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt at Thane or this Court on its Original Side are competent to entertain and try the respective proceedings, are kept open. 31. Once the above view is taken, then, none of the alternate contentions of Mr. Kumbhakoni need be decided. Mr. Kumbhakoni does not dispute that in terms of Section 24(1)(b), this Court can withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, at any stage and try and dispose of the same. If that power is available, then, in my view in the peculiar facts of this case, it would be proper to transfer the proceedings from the District Court, Thane to the Original Side of this Court. 32. In the light of the above conclusion, the argument that this Court can only direct consolidation of both Petitions without passing any order with regard to their transfer, need not be considered in this case. Apart therefrom, once I find that the Respondents have no objection to consolidation of the proceedings so as to avoid conflicting decisions or simultaneous trial/hearing, then, all the more, the powers to transfer needs to be exercised in this case. It is undisputed that the parties are common to both matters. In both matters the same Awa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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