IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.375 of 2009 THE UNION OF INDIA & ORS Versus M/S JIALAL KISHORILAL ----------- For the Appellant- Mr. Anil Kumar Sinha, Advocate For the Respondent: Mr. Sanjay Kr. Pathak Mr. Vijay Shankar Upadhyay, Advocate Mr. Nagmani Kumar 4 12.05.2010 Heard the learned counsels for the parties under Order 41 rule 11 of the CPC. 2. This Misc. Appeal has been filed by the Union of India through General Manager, E.C.R. Hajipur, Bihar and others against the order dated 04.04.2009 passed by the learned District & Sessions Judge, Rohtas, Sasaram in Civil Miscellaneous (Arbitration) Case No. 65 of 2008 whereby the learned District Judge dismissed the application filed by the appellant under section 34 of the Arbitration & Conciliation Act,1996 on the ground that he has no jurisdiction to entertain the application filed under section 34 of the Arbitration & Conciliation Act, 1996. 3. For better appreciation, the facts may be stated in brief, that tenders were invited by the appellant for construction of bridge between Dehri-on-sone and Mughalsarai and the tender of the respondent being the lowest, the Railway Administration accepted the tender by order dated 24.05.1993. Thereafter, dispute arose between the parties regarding the contract dated 28.10.1993. The 2 Railway Administration then terminated the contract of the respondent by letter dated 26.09.1996. 4. It appears that the Hon’ble Acting Chief Justice, Kolkata appointed Hon’ble Mr. N. K. Bhattacharya, former Judge, Kolkata High Court as arbitrator and referred the dispute. 5. After hearing the parties, the learned arbitrator awarded a sum of Rs 73,25,000/- in favour of the respondent. 6. The Railway Administration i.e. the appellant filed an application under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 21.01.2008 passed by the learned arbitrator before the District & Sessions Judge, Rohtas at Sasaram. 7. The respondents appeared and filed rejoinder challenging the jurisdiction of the court. After hearing the parties, the learned District Judge finally held that he has no jurisdiction to entertain the application filed under section 34 of the Arbitration & Conciliation Act, 1996. 8. The Railway Administration filed this appeal before this court under the provision of section 37(i)(b) of the Arbitration and Conciliation Act, 1996. 9. At the very outset, the learned counsel appearing for the respondents raised the question of maintainability of the appeal before the court. According to 3 the learned counsel, the District Judge has correctly found that he has no jurisdiction to entertain application u/S 34 of the Arbitration and Conciliation Act and therefore, the learned District & Sessions Judge has not refused to set aside the award of the arbitrator on merit but has only decided the question of jurisdiction. In such circumstances, appeal is not maintainable u/S 37(i)(b) of the Arbitration and Conciliation Act, 1996. 10. On the otherhand, according to the learned counsel for the appellant, the reasoning assigned by the learned District & Sessions Judge that Kolkata High Court has got exclusive jurisdiction, is wrong. And, therefore, that part of the order is liable to be set aside. The learned counsel further submitted that application u/S 34 of the Arbitration & Conciliation Act, 1996 was filed and the learned District & Sessions Judge, refused to set aside the award on the ground of want of jurisdiction. And, therefore, indirectly, he refused to set aside. The reasoning assigned by the District Judge will not determine the forum of appeal. 11. In view of the above contentions of the parties, the points arises for consideration is as to whether this appeal is maintainable before this court. 12. In the Act, “Court” has been defined as followes: Section 2(i)(e): “Court” means the principal 4 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. 13. In view of this provision, the application u/S 34 of this Act is required to be filed in the Principal Civil Court of Original Jurisdiction in a district. It is not disputed that District & Sessions Judge is not the Principal Civil Court of Original Jurisdiction having jurisdiction to decide the question forming the subject matter of the arbitration. Therefore, it is also not disputed by the parties, that the application itself was not maintainable before the District & Sessions Judge in view of the above provisions as contained in Section 2(i)(e) of the Arbitration & Conciliation Act. 14. From perusal of the order, it appears that the District & Sessions Judge, no doubt, has given the reason otherwise for holding that he has got no jurisdiction but the result is that he has got no jurisdiction. 15. In a decision reported in 2009(6) SCC 69 5 (Hindustan Corporation Ltd vs. Nicco Corporation Ltd.) in similarly situated case, the Hon’ble Supreme Court at paragraphs- 9, 10, 11 & 12 has held as follows: 9. Counsel appearing for the appellant has submitted before us that since the aforesaid appeal which the appellant had filed was an appeal under section 37 of the Arbitration and Conciliation Act, 1996, it should have been entertained and decided by a Division Bench, since the order of the learned Single Judge was under challenge. We are unable to accept the aforesaid contention which is found to be prima facie untenable in view of and in the light of the provisions of the Arbitration and Conciliation Act, 1996. 10. The said application under Section 34 is to be filed before a court which is empowered and has the jurisdiction to entertain and decide such objection filed under Section 34 of the Act. The expression “court” is defined under the provision of Section 2(1)(e) of the Act, meaning the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil 6 jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration. 11. Section 37 of the Act on which emphasis was given by the counsel for the appellant applies only when the preconditions mentioned therein are satisfied. The submission of the learned counsel appearing for the appellant is that since the learned Single Judge refused to set aside the arbitration award, therefore an appeal could be preferred by the appellant as envisaged under Section 37(1)(b) of the Arbitration and Conciliation Act, 1996. 12. We are again unable to persuade ourselves to accept the aforesaid contention of the counsel appearing for the appellant for the petition filed under Section 34of the Arbitration and Conciliation Act, 1996, was dismissed on the ground of maintainability of the petition and not on the ground by refusing to set aside the arbitration award. 16. In view of the above settled principles of law as laid down by the Hon’ble Supreme Court, I find no force in the submission of the learned counsel for the appellant. 7 The District & Sessions Judge has not decided the application u/s 34 of the Act on merit but has only found that he has got no jurisdiction. In view of the Hon’ble Supreme Court, the application u/s 34 itself was not maintainable before the District & Sessions Judge. In such circumstances, the appeal is not maintainable before this court u/s 37(i)(b) of the Act. 17. The learned counsel for the appellant submitted that in the decision referred to above, the Hon’ble Supremne Court had remanded the matter to the District & Sessions Judge for transferring the case to appropriate court. And therefore, in this case also the matter may be remanded to the District & Sessions Judge with a direction to transfer the case to appropriate court. 18. So far this submission is concerned, it may be stated that I have already held that appeal is not maintainable; therefore, this court has also got no jurisdiction to pass any order or direction on the appeal which is not maintainable. In the decision referred to above, the appeal (L.P.A.) was filed before Hon’ble Jharkhand High Court and it was held that the appeal was not maintainable. The Hon’ble Supreme Court confirmed the same and held that appeal u/S 37(i)(b) was not maintainable before High Court. Therefore, this court cannot pass any order in this appeal as the order will be without jurisdiction. 8 19. However, in this case, the District Judge has given liberty to file application before appropriate forum. The appellant may act accordingly. 20. In view of the above discussion, I find that this Misc. Appeal is not maintainable before this court. Accordingly, this Misc. Appeal is dismissed as not maintainable. AKV/ (Mungeshwar Sahoo,J.)