/^A^^iSl.r.T^^^Vl-'V^'^U'^''^' m THE HIGH COURT OF JUDICATURE OP CHHATTIS:G^tH:BILAS.PTO lAlyitPetit-i,pn No.53^ of 2002. -*»• PETITIONER APPLTGSNT" (to^^hv \3><yt)<sj»>»<-..^ ^- )^ &*< 6tegai.' 'j?a1 •i1'- MTgam, R=.ipar^ Tiirnngb—:—^""imlp" •'""01-, Hsr-far pal 1'i^ Nigam, P.aipur (C.G.). >y frV^6-T<(- t-Le_ C-e'o- Rr,p'i$ ^!^>- fl-^^. ^ -U.C"'•>r VE R S U tt.h(A<^ t •"".^^Y.-"'''^ <<• • -^^ i":o«^SPONDENT V, '^ i!fyw~ NON-APPE'IGANT ^^^'(y^ ! M/s Sarln Constructlon Company f) Ralpur (C.G.) t"Through s S:hri Ashok. Sarin S/o late Shri CSiaraan Lal Sar/ln, Sector - 3 Devendra Nagar^^Raipur (C.G.) W.TZTIQN UNDER ARTICLE 227 OF CONSTOTUTION OP mDIA 'f'^'Ss'^^gS'. ^^^^^^^^^^^^^^^^^^g^^^'^^ ^^ HI6H COURT OF JUOICATURE AT BILAS'UR. CHHATTIS6ARH Writ Petition No.994 of 2002 Raipur Development Authority - Versus - M/s Sarin Construction Company Raipur < POST FORORDEItQN^^MARCH. 2005 •^^ ^ ^ Sd/- L.C. Bhadoo "V l]lnin'"""r HI6H COURT OF JU&ICATURE AT BILASPUR. GHHATTIS6ARH Writ Patition No.994 of 2002 Raipur Development Authority - Versus - M/sSarin Construction Cornpany Raipur Present; - Mr. B.P. Sharma. Advocate; Mr. Sunil Otwani, Advocote: For the petitioner. For the respondent. ORDER ffcissed onX-t'th lAm-ch.ZOCG) L.C. BHADOO. J. 1. The petitioner hos preferredthiswritpetittonunderArticle 227ofthe Constitution of India bein9 aggrieved by order-dat'ed 13.3.2002 passed by teamed Additionnl District Judge (Special Judge), Raipur in Suit No.Z-B/2000 •1/herebylearned Additionat District Judge hoe rejected the objecl'ion raised by the petitioner herein that the Additional Distrief- Judge has no-.Jurisdiction to decide the apptication filed under Section 34 of the Arbitruf-ion A (^oncilietion Act, 1996. 2. Brief facts leading to filing of this petition are that a dispute had orisen between the part'ies and therefore, the matter was referred to the Apbitrator, who passed the wbitral oward dated 11.12.1998 in favour of the respondent herein. Against the said award the petitioner herein moved an applicotion under Section 34 ofthe Arbitration AConciliation Act, 1996 (hereinafter shall bereferred as to "the Act- of 1^96') in the Court' of District Judge, Raipur for setting aside the said awnrA However, learned District Judge transferred thut appticatipn to the Court of learned Additional Distrirt Judge (Special Judge) Raipur, which i l ) i^ t^,^,.<i— ^^'' PageZofS "~\\ was registeredas Suit No.2-8/2000. The petitioner herein by aniending his pleadings challenged the jurisdiel-ion of learned Additional Oistrict Judge (Special Judge)< Raipur to deal with that application on the 9round thflff learned Additional District Judge has no j'ut'isdiet'ion to decide the application filed under Section 34 oftheAct of 1996. Amongst.other issues, Issue No.l was framed as pretifninary issue o&jection regarcling the Jurisdiction and same was decided by leorned Additional District Judge vide order dated 13.3.200Z against the petitioner herein hotding thaf Additional District Judge has jurisdiction to decide the applicat'ion under Section 34 ofthe Actof 1996. 3. The petition of the petitioner is that in view of the provisions of Sections 2(e) A 42 of the Act of 1996 only the Distriet Judge, wkich is the Principal Civil Court of t>istrict, has the jurisdiction to decide the opplication under Section 34 of the Act of 1996. Moreover, the sald application was filed beforethof court, therefore, that courf' was Iwt entitled totransfer the saidappljcation to learned Additional Ofst'rict' Judge. Therefore.the order impugned passed by learned Addifional Oistrict Judge is perverse, illegal and contrary to law, 4, Returntothiswritpetitionhasbcen filed on behalf of therespondent in which it hns been mentioned that- the Courf of Additional District Judge hns also vested with thSs powers pf District Judge to decide the cases. Moreover, the District Judge whjlte exercising the powers under Section 24 of the CPC tronsferred the application to Addltional bistrlct Judge, therefore, Additional tSistrict Judge is competent to deeide the applicotion nnd whois npt inferiorto the Oistrict' Judge. 5. I have heard learned counsel forthe parties. 6. Learned counsel for the petitioner a-guedthat in viewofthe|provtsions of Section 2 (e) A 42 of the Act of 1996 nnd Section 3(17) ofthe ©eneralClauses Act, the Additional Oistricf' Judge has nojurisdictionto decide the applicotion under Section 34 of the Ael- of 1996. for the • ',-saSSsS^'SsX^ 'S'v: ^ ldeB%iSS».w.i;;,;8sii->».;::,.a Page3of8 E rensons that as per Seetion 2(e) of the Act of 1996 the "Court-" roeans the Principal Civil Court of the distriet ond ns per Section 3(17) of fieneral Clauses Act the &istrict Jud9e is the Judge of a Principal Civil Court nnd in view of Section 42 whennny applicdf'ion with pespect toan cirbitration(^reement is filed before the [Sistrict Judge, the Oistrict Judge has no authority to transfer the said application and Oistrict Judge hos to decide theapplicotion. 7. On the other hand, learned cojmsel for the respondent argued that in view ofthe provisions of Sections 7(2) and 8 ofthe AA.P. CivilCourt- Act, 1958 (hereinafter shall be referred as to the Act of 1958'^ the Additionol District Judge has been outhorized to discharge ony of the functions of n District Judge, includin9 the functions of Principal Civil Court of original jurisdictiori which the District Judge may, by general or special order, assign to him and inthe dischnrge of such functions he shall exercise the same powers as of the &istrict Judge. Therefore, in view oftheabove provistons the District Judgehasri9htly transferthe case to the Additional District Judge. In support of his orguments learned counsel for the respondent relied uponthe decision ofM.P. High Court reported in 1993 MPLJ 603 between Vinod Kumar Jttjodlaand othars Vs. Bri.i Bhushan ABarwaI ond otso on the decision of Karnataka High Court- reported in^ZOOZ qi Arb.LR 530 (Kamatakaibetween VaUiaoa Software Tachnohwical Park (Pvt.l Ltd.. Banoatortt Vi«rsusC. Sundanun and others. 8. Having henrd learned counsel for the part-ies, I have perysed the relevnnt records A provisions of law. In this conneetion,- Section 2 (e) of the Act of 1996 defines the 'Courfi "2(e) nCwyt" mecns the principal Ciyil Cotyt of oriynesi jwisdictiott in a district. md inchdes i'he High Cotwi- in exervise of its ordinwy original ciyil Jwisdiction, hwing jwisdictien to decide the questions forming the stdsjecf-woittw of the arbitratim if the saine had beenthe subject-metter of a suit, but does not include any civil court of a Page4vf8 <^ grade mferior to suck fnncipal Civii Cotrt, w wiy Cotirt of Sm<d) CeusesM Section 42 ofthe Aet of 1996 envisa9es that: ^42. JwisdietloH.- Notiyitlistanding anyrtiing contamed elsewhere in this Pert w in c»yother hw for the tmebeing in farce, where with respeet to w arbitr^ion eyreemwrt' eny cfplieatiott uneter tkis PeTt has been made in a Ceurt. that Court alone shatt hme Jwisdiction over the arbitral proceedvys and all Stibseytaitapph'caf'iwists'ising out ofthatfyeement. and the <rbitral f»'oc^dings shalf be made in that Cotrt md in no other Court." In this connection Section 7 of the Act of 1958 envisages that; "7. PiiHdpcS Gvll Courts of ortglsei jwlsdfetten. - (1) The Courf of the t>istrict Judge shall be the Princifial Civil Court of origimsl jwisdiction in the civifdistricl: (2) [An ^dditionat Disf-rict J'wlgeJ shalf dischwge ewy af the fimctions of a Oistpict Jwlge, inchtding the ftmctiotis fff Prmcfpal Cinf Court af original jwisdicl'ion which the £>isl-rict Judge may. by genwal or special wder, cssiys to him tmd in the discharge of sueh fwwtions he shall exerclse the samepowersas the Oistrict Jtidge." Therefore, a conjoint reading of Secfions 2(e) d 42 of the Act,lewes no mnnner of doubt that the Legistature intended to mnke only one Court- the principal Civil Court' of'original juriscticl-ion or, as the cose mcy be, the High Court- in exercise of its ordjnai'y originaljurisdict'ion, whicheverCourt- is approached earlier, as the venue for alt mcrtters connect'ed with an arbitration agreemerit; and award; and all arbitral prbceedings. Seri-ions J(e) A 42 poraphrased in simplefanguage, would menn that any applicatlofl 'with respect to an arbitrution c^reemenf wlll have to be fiied fn the principalcivil Court of ori9innl jurisdiction in a distriet/or, os the case may be, in theoriginat civil jurtsdiction of the High Court, having Jurisdiet-ion to decide the questions forming thesubjeet-matter ofthe arbitrafion ifthe sarne had been the subjeet-matter of a suit and that Court alone te which the application is filed shall have the jurisdiction over the entire erbitral PageSofS ^5 ^. proceedings to the exclusion of nny other Court, having jurisdiction to decide the questions forming the subjeet'-motter of arbitrol-ion. The language used in Section42 with respeet to nn arbitration agreement is wide enough to include within its sweep an application for'setting aside an orbitral award on grounds Specified in Section 34 of the Act of 1996. . Arbitral proceedingsterminate byfinal award orbyan order oftHeArbitralTrifaunal under sub-seetion (2)0f Section 32 of the Act. But termintttionof the Arbltral proceedings is subject to Section33 and sub-section (4) of Section ^4 as visuntized bysub-sect-ion (3) of Section 32. Section 42 ofthe Act would, therefope, be necessarily attroeted in relotion to an applicdtion under Section 34. 9. Now, if we read the provisions of Sections 2 (e) & 42 of the Act of 1996 along with Section 7(2) of Act of 1958, even though as per provision of sub- section 2 of Section 7 ofthe Act of 1958the Additionat District Judge has been authorized to discharge any of the functions of a District Judge, including the functions of principol civil court of original jurisdiction which the District Judge may, by general or special order, assign to him and in discharge of such functions he shalt exercise the same powers as the District Judge. But the core question before the Court is whether the District Judge before whom the applicat'ion under Seetion 34 of the Act of 1996 has been filed for settin9 aside the award isempowered to tronsfer that application by invoking the provisions of Section 24 of CPC A sub- section (2) of Section 7 of the Actof 1958 ngainst the clear-cut mandote of provisions of Section 42 ofthe Act of 1996. tO.As discussed above Section 2 (e) ond 'm view of overridin9 effect ofSection 42 of the Act of 1996, it is obundantty clenr thot the Courl- of the Additional District Judge is not vested with the juristfietion •t'olentert'ain an opplication under Section 34 of the Act of 1996 and the t>istrict Judge cannot, by invoking the provisions contained in Section 7(2) of the Act of 1958 pr Section 24 of CPC, transfer the applicat-ion for its disposal to the Court of cn Additionat District Jud^e. Annpplication for setting nside an m^ '?5?£,y'F Page 6 of8 M^ \ • • i nward under Section 34 inasmuch os application "with respect to an nrbitration agreement" as it is for "setting nside the arbitral award" and it is a motter of statutory compulsion that such application is mode to the principal civil Court of ori9inal jurisdiction in a disfrict or the High Court- in exerciseof its ordinary originalcivil jurisdiction' hoving jurisdict'ion to decicle the questions formin9 the subject matt-er of arbitration ifthe same hod been the subject-mott-er of a suit ond it is ac|ain a mfftter ofstatufory mondate that the Court-to whtch the application is made 'alone shnn have ^ ' ••• .. jurisdiction over the arbitral proceedings andallsubsequent applicatfons nrising out of thot agreement', and the orbitral proceedings shall bemade in that Court and in no other Court. The power to transfer/assign the application to ony other Court, otherwise having jurisdietion to decide the questions forming the subject-matter of - arbitration had it been the subject matter of a suit, has been implieclty taken away by Section 42 which is drafted in a lan9U09e frought with overriding effect. As th& wordin9S used in Secl-ion 42 is thof 'no'twithstanding anyt'hing cwitmned elsevhere in thisPart or inany other latv for the timebeing in force, then the wordirqs " the C<wrt alone shall hme Jwisdictien over the orbitral froceedings ond all subse^uent affplical-ions wising out of fhat ayewiwit and the crisitral proceedings shall be made in thatCourt' and m no other ^oun^, therefore, the longua9e employed in this section only that the District' Judge before H/hom the application under-Sect'ion 34 has been made is competentto hear and he cannot transfer thesaid applteation to the Additional bistriet Judge by invoking the provisions of sub-section (2) of Section 7 of the Act of 1958 against the niandate of law of Section 42 which ctearly says that ^notwithstcsnding anyf'hing contained elsewhere in this Pos^- or in any other law for the time being in fwce'. Therefore, in my considered opinion, in view of the above diseussion the District Judge was not comlpetent to transfer the application to the Additional District Judge (Special Judge) and consequent upon the Additionat bistrict Jiidge has nojurisdiction totry the said application. It istrue that in view of Section 7(2) of tlie Act of 1958 the Additional bisfrict judgecan atso discharge the functiens of the a s ^ ''^^^^^^ Paje7ofSt principal civil Court and he is not a court inferior to the District Jud9e, therefore, the District Judge con transfer other motters, but in view of longuage of Section 42 of the Act of 1996 the District Judge cannot tronsfer the appliccrt'ion filed under Section 34 of the Act of 1996 cmd for this view I.om fort'ified by the judgment of Altahabnd 1-ligh Court peported ••; in AIR 1S®8 AUahflAad 313 between ft/s I.T.I. UdT. AU<Aabad md othars Vs District Judoe. ABahabad and others. 11. Ntow coming to the cose laws relied upon by learned counset for the respondent, the jud9ment of .P. l-1i9h Courf in Vinod Kumar Jajodia (supra) is of no help. to the respondent herein, as the same is distinguishable on faet-s and same was reltrt-ing to simple money suit and thot is why the High Court held that in view of Sections 7(2) <& 8 of the Act of 1958 the Additional Oistrict Jud9e wos ehtitled to trythe suit. In this matter the provisions of Section 42 of the Act of 1996 was not ot a(l retevant and attpacted. So faras the other Judgment of Karnataka l-1i9h Court- relied upon by learned counsel for the res^ondent i.e. Valliapa Softifare Technological Park (Pvt.) Ltd., Bangalore (Sypra) is concerned, this Judgment is also of no help to the respondent herein, for the reason thot in this cnse it hos not been held thot the principal city Civit Judge was entttled to transfer the applieat'ion to the other City Civil Judges filedunder Section 34 of the Act of 1996'. In this case after interpreting theSection 2 (2) & (3), Section 3(1), Sect'ion 2(4) $ Section 2(6) of Banaalore City Civil Courfs Actof 1979 the Hi9h Court hetd that "the ap{jtic<ition mdei' Section 9 of fhe Act of 1996 was filed in the Ctty Civil Court No.6 of Bwgahre. By 'virtue af theorder pcssed by theHigh Court the Pftnciffal Cily Cml Judge has afhti-ed all the orbitroct'ion fvoceedings filed in the Ct'tyCivifCotiri- of Swgahreto ffh Additionat City CivitJ'udge who sits in theCourt Half No.ll. It is not a case of Ppincipal City Civil Judge eritertamng ihe application - ttneSepSection9oftheActl996andthentrmsfemngtfiestsidap{slica1'ion to the Co<rt of 6HI Additianat €ityCml Judge who sits\in the Court HaH No.ll. Therefore, as the Principal CityCivil Judgeand Additional CityCivit Judges were put on equnl foiyt'ing in view of the provisions of Bar^alore City i€ \ Pa9e8of8 y- Civil Courts Act of 1979 ond also in view of the High Court's, order, the Principal City Civil Judge passed an order whereby it was djrected thotall the applicotions under Section 9 ofthe Act of 1996 shall beentertained by learned 6 Additional City Civil Court and those applications were being filed before thot Court only and thot was not a case where the application first filed before thePrincipalCityCivil Judge and then it wa&transferred. Therefore, on facts the obove judgment is also of no help to the respondent, -^. 12. Learned counsel for the parties also cited some other Judgments but they are not relevont to the point in controversy, therefore, they have not been discussed inthis order. - » 13. In view of the foregoing discussion, I am of the opinion that the District Judge, Raipur, who is the Principal CityCivilCourt' ofthe District, was not entitled to transfer the application filed under Section 34 of the Act of 1996 before him for setting aside the award in view ofthe provisions of Section 42 of the Act of 1996. . 14. In the resutt, the petition ofthe petitioner deserves to be allowed, some is allowed and the orderimpugned dated 13.3.2002 is hereby set aside. The learned Additional District Judge (Speciat Judge), Kaipur shall send back the record of the case to the Court of District Judge, Raipur for its disposal in accordance with law. No orderas to costs. '*•. 15.Copy of this order be circulatedamong atl the District Judges for their information and necessary action. :— Sd/- L.C. Bhadoo Judge 'i:f