1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 161 OF 2009 Ashutosh Contructions Pvt. Ltd. ....Applicant Versus State Bank Nagar Co-op Housing Society Ltd. & Ors. ....Respondents Mr. A. Rajadhyaksha, Senior Counsel i/b. Mr. D. Brijesh for the Applicant. Mr. V. P. Sawant for Respondent No.1. CORAM : R. V. MORE, J. DATED : 8th JUNE, 2009. P.C. Rule. By consent, rule made returnable forthwith. 2. Heard, Mr. Rajadhyaksha, learned Senior Counsel for the Applicant and Mr. Sawant, learned Counsel for Respondent No.1. 3. By the present Revision, filed under section 115 of the Code of Civil Procedure, 1908 the Applicant seeks to challenge legality of the order dated 31st January, 2009 passed by the learned Civil Judge, Senior Division, Pune below Application at Exhibit 7 in Regular Civil Suit No.22 of 2006 whereunder the Applicant’s said application for issuance of necessary directions and orders thereby returning the award dated 25th June, 2003 submitted by the Respondent No.2 on 2nd January, 2006 in Regular Civil Suit No.22 of 2006 for presenting the same before an appropriate forum viz. the Original Side of the High Court 2 came to be rejected. The facts giving rise to the present revision are as follows: i) The agreement was entered into between the Applicant and the Respondent No.1 for construction of residential buildings on 11th January, 1992. The dispute between the Applicant and Respondent No.1 arose during the execution of the work and therefore, Civil Suit being Suit No.1142 of 1995 came to be filed by the Applicant before the Civil Judge, Junior Division, Pune against Respondent No.1. The Applicant in this Suit sought the appointment of a Commissioner and an injunction restraining Respondent No.1 from awarding the balance work under the contract to another person. The said application came to be dismissed and the Applicant being aggrieved preferred Writ Petition No.3568 of 1995 in this Court. The Writ Petition came to be disposed of by the Minutes of Order dated 14th September, 1995 and the dispute between the Applicant and Respondent No. 1 was referred to Shri B. N. Deshmukh, former Chief Justice of this Court. Under clause 12 of the said Minutes of Order, the Applicant sought liberty to withdraw the Special Civil Suit No.1142 of 1995 with liberty to agitate the grievance before the Arbitrator and the said liberty was granted. ii) The Applicant thereafter filed Civil Application No.9574 of 1997 in the above Writ Petition for extention of time for passing of the award and this Court by an Order dated 9th August, 2000 extended time to pass the award by the period of six months. The Applicant thereafter made an application to this Court for suspension of proceedings before the Arbitrator and his removal. However, the Arbitrator communicated that due to his ill health it would not be possible for him to conduct the arbitration and 3 therefore, the application for removal of Arbitrator came to be withdrawn. iii) The Applicant thereafter proposed three names of Arbitrators and requested Respondent No.1 to select one in place of the Arbitrator who had resigned. Since the Respondent No.1 did not agree, the Applicant applied to this Hon’ble Court under section 8 of the Arbitration Act, 1940. The Respondent No.1 filed a reply to the said application but did not dispute the jurisdiction of this Court to make the order under section 8 of the said Act. This Court accordingly, by an order dated 1st February, 2002 appointed Respondent No.2 as the Arbitrator. iv) The order appointing Respondent No.2 as an Arbitrator was challenged by Respondent No.1 by filing an Appeal in this Court and thereafter Special Leave Petition before the Apex Court. However, both the proceedings came to be dismissed. v) The Respondent No.2-Arbitrator passed his Award dated 25th June, 2003 and on 8th July, 2003 filed the same on the Appellate Side of this Court. The Division Bench of this Court by an order dated 5th October, 2005 returned the award to Respondent No.2 on the ground that there is no provision to file an arbitral award on the Appellate Side of the High Court. The Respondent No.2 thereafter filed an Award in the Court at Pune as stated above. The Applicant filed an application for returning of the award to Respondent No.2 for filing the same before the appropriate Court viz. the Original Side of the High Court. The said application came to be rejected by the impugned order holding that the award is rightly filed in the Civil Court and therefore the present Revision. 4 4. Mr. Rajadhyaksha, learned Senior Counsel appearing for the Applicant, relied upon the provisions of section 14(2) read with section 31(4) of the Arbitration Act, 1940 and the judgment of the Apex Court in M/s. Guru Nanak Foundation versus M/s. Rattan Singh and Sons reported in (1981) 4 Supreme Court Case 634 and submitted that the Civil Court has got no jurisdiction and the award ought to have been filed before an appropriate forum viz. the Original Side of the High Court. Mr. Sawant, learned Counsel appearing for Respondent No.1, per contra supported the impugned order and submitted that the Applicant’s application is rightly dismissed by the Trial Court in as much as the Respondent No.2 rightly filed the award in the Civil Court. 5. Having heard the learned Senior Counsel and learned Counsel for the respective parties, I find merit in the Revision Application. The Hon’ble Apex Court in M/s. Guru Nanak Foundation case, Supra has considered the provisions of section 14(2) read with section 31(4) of the Arbitration Act, 1940 and held that sub-section 4 of section 31 not only confers exclusive jurisdiction on the Court to which an application is made in any reference but simultaneously ousts the jurisdiction of any other Court which may as well have jurisdiction in this behalf. In M/s. Guru Nanak Foundation case, the contract was entered into between the Appellant and the 1st Respondent therein on 4th April, 1972 for construction of a building. Clause 47 of this contract incorporated an arbitration agreement between the parties. The first Respondent therein moved an application in Delhi High Court under Section 20 of the said Act for direction to refer the dispute to Arbitrator to be appointed by the Court. One M. L. Nanda, retired Chief Engineer, CPWD- the 2nd Respondent therein was appointed as the sole Arbitrator. The Appellant thereafter filed another proceeding in Delhi High Court for removal of M. L. Nanda, however, this application was rejected by Delhi High Court and thereafter Special Leave Petition was moved by the Appellant therein before the Apex Court. The Apex Court after hearing the parties removed Respondent No. 2- M.L.Nanda as Arbitrator and appointed Shri C. P. Mallik, retired Chief 5 Engineer, CPWD as the sole Arbitrator. The Arbitrator-Shri C.P. Malik, 3rd Respondent approached the Supreme Court for filing award. However, he was advised by the Officer of the Apex Court that the award should be filed in Delhi High Court and in pursuance of this advice Shri C. P. Mallik, 3rd Respondent filed an award in Delhi High Court. Thereafter, the 1st Respondent moved the Petition before the Apex Court seeking declaration that award has to be filed in Apex Court in view of the provisions of section 14(2) read with section 31(4) of the Act and for a direction that the award be collected from Delhi High Court and be filed before the Apex Court. 6. The Apex Court considered the provisions of section 31(4) and observed as follows: “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 sub- section (4). The provision contained in sub-section (4) will have an overriding 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 14(2) or Section 31(1) will be the court in which Award will have to be filed. That is the effect of the non-obstante clause in sub-section (4) of Section 31. Sub-section (4) thus invests exclusive jurisdiction in the court, to which an application has been made in any reference and which that court is competent to entertain as the court having jurisdiction over the arbitration proceedings and all subsequent applications arising out of reference and the arbitration proceedings shall have to be 6 made in that court and in no other court. Thus sub-section (4) not only confers exclusive jurisdiction on the court to which an application is made in any reference but simultaneously ousts the jurisdiction of any other court which may as well have jurisdiction in this behalf. To illustrate the point, if an Award was required to be filed under Section 14 (2) read with Section 31(1) in any particular court as being the court in which a suit touching the subject-matter of Award would have been required to be filed, but if any application in the reference under the Act has been filed in some other court which was competent to entertain that application, then to the exclusion of the first mentioned court the latter court alone, in view of the overriding effect of the provision contained in Section 31(4), will have jurisdiction to entertain the Award and the Award will have to be filed in that court alone and no other court will have jurisdiction to entertain the same”. The Apex Court in paragraph 18 of the said judgment further observed as follows: “ 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 enter upon the reference within 15 days from the date of the Order of the Court and he should try to dispose of the same as expeditiously as possible. The final Order was that the appeal was disposed of in terms hereinabove indicated. A contention that thereafter this Court was not is seisin of the matter was urged relying upon the fact that the appeal was disposed of by the Order of the Court and that there was no further proceeding before this Court. This contention has merely to be stated to be rejected, as will be presently pointed out. After the disposal of the appeal, C.M.P.No.896 of 1977 was presented to this Court for clarification and/or modification of the Order of the Court dated 7 January 5, 1977. This Court by its Order dated February 10, 1977, gave further directions and a specific time-limit was fixed by this Court directing the 3rd respondent as arbitrator to conclude the proceedings withing four months from the date of Order of the Court. Even with regard to the conduct of proceedings this Court directed that the 3rd respondent should proceed with the reference from the stage where it was left by the 2nd respondent and that not only that he may permit additional evidence to be led but he must consider the pleadings and evidence already placed before the previous arbitrator. This will indisputably show that this Court had complete control over the proceedings before the arbitrator”. The Apex Court having made above observations, declared that the Apex Court is the Court having exclusive jurisdiction wherein the award should be filed. 7. In my view, the facts of the present case and the facts before the Apex Court in M/s. Guru Nanak Foundation case, Supra are similar. Initially, Shri B. N. Deshmukh, former Chief Justice of this Court was appointed as Arbitrator in Writ Petition filed by the Applicant. Since, this Arbitrator retired, Respondent No.2 was appointed as Arbitrator by this Court in an application under section 8 of the Arbitration Act, 1940 by the Applicant. The appointment of Respondent No.2 as Arbitrator by this Court shows that this Court had complete control over the proceedings before the Arbitrator. Not only this, the Applicant asked for leave to withdraw the Special Civil Suit No.1142 of 1995 with liberty to agitate the grievance before the Arbitrator and the same was granted. In that view of the matter, the said suit does not survives. 8. In the facts and circumstances mentioned above, I find substance in the argument of the Applicant that the award ought to have been filed before the Original Side of the High Court. The learned Trial Judge by passing the 8 impugned order committed an error of law apparent on the face of record in rejecting Applicant’s application at Exhibit 7 and therefore, the present revision deserves to be allowed. The impugned order is accordingly quashed and set aside. The Applicant’s application at Exhibit 7 is allowed in terms of prayer clause (a) therein. Rule is made absolute in above terms. However, in the facts and circumstances of the case, there shall be no order as to costs. Sd/- (R.V.MORE, J.)