Bombay High Court

Naresh Kanayalal Rajwani And 2 Ors vs Kotak Mahindra Bank Limited And Anr on 9 March, 2021

Author:
B. P. Colabawalla

Bench:
B. P. Colabawalla

carbpl.1444.2019.docx

dik

Dhanappa IN THE HIGH COURT OF JUDICATURE AT BOMBAY
I. Koshti ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by Dhanappa I.
IN ITS COMMERCIAL DIVISION
Koshti
Date: 2021.03.15
15:59:07 +0530
COM. ARBITRATION PETITION (L) NO. 1444 OF 2019

Naresh Kanayalal Rajwani & Ors. ... Petitioners
Vs
M/s Kotak Mahindra Bank Ltd. & Anr. ... Respondents

Dr. Abhinav Chandrachud a/w Laxminarayan Shukla, Unnati Ghia, Mehul
Rathod i/b M/s Legal Vision for the Petitioners.

Mr. Vishal Kanade a/w Chinmayee Ghag and Nishant Rana i/b Zastriya
Attorneys and Legal Consultants for Respondent No.1.

CORAM : B. P. COLABAWALLA, J.

DATE : 9th MARCH, 2021

P.C. :

1. The present Arbitration Petition is filed by the petitioners

under
Section 34
of the Arbitration and Conciliation Act, 1996 (for

short the "
Arbitration Act
") challenging the Award dated 4th

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August, 2019 passed by the Sole Arbitrator.

2. At the very outset, respondent No.1 has taken a

preliminary objection that this Court does not have jurisdiction to

entertain the present petition filed under
Section 34
of the

Arbitration Act. Respondent No.1 has urged that before the petition

be entertained on merits, the issue of jurisdiction of this Court be

decided first.

3. In order to decide the preliminary issue of jurisdiction, it

would be necessary to set out some brief facts. The arbitration clause

in the loan agreement executed between the parties reads as under:-

"In the event of any dispute or differences arising under this
Agreement including any dispute as to any amount outgoing, the
real meaning or purport thereof ("Dispute"), such Dispute shall be
finally resolved by arbitration. Such arbitration shall be conducted
in accordance with the provisions of the
Indian Arbitration and
Conciliation Act, 1996
or any amendment or re-enactment thereof
by a single arbitrator to be appointed by the Lender. The venue of
arbitration shall be at New Delhi and the arbitration shall be
conducted in English language".

(Emphasis Supplied.)

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4. Since disputes arose between the parties, arbitral

proceedings were instituted at New Delhi and which culminated into

an Arbitral Award dated 30th January, 2013 (for short the "First

Arbitral Award") in favour of respondent No.1. This First Arbitral

Award was passed at New Delhi.

5. This First Arbitral Award was challenged by the

petitioners herein before this Court by filing Arbitration Petition No.

427 of 2013 [the earlier
Section 34
petition] under
Section 34
of the

Arbitration Act. In the said petition, respondent No.1 appeared on

six occasions before this Court [as recorded in paragraph 3 of the

judgment of this Court dated 17th August, 2015]. Despite respondent

No.1 appearing on several occasions, it did not object to the territorial

jurisdiction of this Court to decide the said petition. Finally, the First

Arbitral Award was set aside by a learned Single Judge of this Court

on 17th August, 2015.

6. Respondent No.1 accepted this order and did not

challenge the same or file any application for review or modification

thereof. It, in fact, acted in furtherance thereto and initiated fresh

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arbitration proceedings by nominating respondent No.2 as the Sole

Arbitrator on 9th February, 2018. On 9th March, 2019 the Sole

Arbitrator issued a disclosure statement under the
Arbitration Act
.

It is the case of the petitioners that though the Sole Arbitrator

disclosed that he had been an Arbitrator in 500 arbitrations for

various Financial Institutions, he did not disclose whether he had

served as an Arbitrator in any matter concerning the 1st respondent

- bank. It is also the case of the petitioners that they applied to the

Sole Arbitrator on several occasions for receiving copies of the papers

and proceedings in the arbitration, but without any success. Apart

from the Statement of Claim, nothing was served on the petitioner.

This, of course, is not germane for me to decide the preliminary issue

of jurisdiction raised by respondent No.1. Be that as it may, the

Arbitral Tribunal thereafter passed a fresh Award on 3rd August,

2019 (for short the "Second Arbitral Award"). This arbitration also

took place at New Delhi and the Second Arbitral Award was also

passed at New Delhi. It is the Second Arbitral Award that is

challenged in the present petition.

7. In this factual backdrop, Mr. Kanade, the learned counsel

appearing on behalf of respondent No.1, submitted that the "seat" of

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arbitration, as designated by the parties, is admittedly New Delhi and

the petitioners do not even dispute that the "seat" of the Arbitral

Tribunal is at New Delhi. He submitted that now it is well settled that

once a "seat" is designated by the parties, then only the Courts where

the "seat" is situate would have jurisdiction to entertain all

applications/petitions arising out of the arbitral proceedings. Mr.

Kanade submitted that the moment the "seat" is designated by the

parties, it is akin to an exclusive jurisdiction clause. Once the arbitral

"seat" is determined, the "seat" of arbitration alone determines the

jurisdiction of the Courts over the arbitration.
In this regard, Mr.

Kanade relied upon a decision of the Supreme Court in the case of

BGS SGS Soma JV versus NHPC Ltd.
[(2020) 4 SCC 234] and

more particularly paragraphs 49 to 59 thereof. He submitted that the

Supreme Court in the aforesaid case clearly stipulates that the Courts

having jurisdiction over the "arbitral seat" would have exclusive

jurisdiction due to which any proceedings filed in any other Court,

would have to be held as proceedings filed in a Court without

jurisdiction. Relying upon the aforesaid decision, Mr. Kanade

submitted that in the present case, since the parties to the arbitration

agreement had chosen New Delhi as the "arbitral seat"/ "juridical

seat", the present petition could have been filed only in the Courts at

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New Delhi, and no other. He therefore submitted that any petition

filed to challenge the Second Arbitral Award can only be at the Courts

at New Delhi.

8. Mr. Kanade then argued that though the petitioners do

not dispute that the "seat" of the Arbitral Tribunal is at New Delhi,

they assert that this Court would have jurisdiction by virtue of

Section 42
of the Arbitration Act. Mr. Kanade submitted that in the

facts of the present case,
Section 42
of the Arbitration Act would have

no application at all. It was his submission that
Section 42
would

come into play only in two categories, namely, (i) where the "seat"

has been identified by parties in the contract; or (ii) where the "seat"

is not specified. Mr. Kanade submitted that the present case

admittedly falls in the first category i.e. where the arbitral "seat" has

been identified by the parties. In cases falling under the second

category, namely, where no seat is designated, the application of

Section 42
would depend on where part of the cause of action has

arisen in the territorial jurisdiction of different Courts. This situation

has been succinctly elucidated in paragraph 59 of the aforesaid

Supreme Court judgment in the case of
Soma JV
(supra). However,

this Court is not called upon to examine the application of
Section 42

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in such cases. The present case squarely falls within the first

category, namely, where the arbitral "seat" has been designated by

the parties. Mr. Kanade submitted that where the arbitral "seat" is

designed by the parties,
Section 42
of the Arbitration Act would be

applicable only if an application inter alia under
Section 9
or under

Section 34
is made in a Court having jurisdiction over the arbitral

"seat" as determined by the parties.

He submitted that this is the

position in law as enunciated in paragraph 59 of the Judgment of the

Supreme Court in
Soma JV
(supra).

9. Mr. Kanade then relied upon another decision of the

Supreme Court in the case of
State of West Bengal & Ors. Vs

Associated Contractors
[(2015) 1 SCC 32] to contend that any

application preferred to a Court other than the one that is conferred

with exclusive jurisdiction by virtue of the "seat" being agreed to

between the parties, would also be without jurisdiction. In the

present case, once the parties have designated New Delhi as the

arbitral "seat", the Courts at New Delhi alone have exclusive

jurisdiction. In such a scenario, filing of the earlier
Section 34

petition [Arbitration Petition No.427 of 2013] challenging the First

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Arbitral Award in this Court would not denude or affect the exclusive

jurisdiction of the Courts at New Delhi. He submitted that in fact this

Court did not have territorial jurisdiction to entertain the earlier

Section 34
petition (challenging the First Arbitral Award) since

exclusive jurisdiction was vested by the parties in the Courts at New

Delhi. Mr. Kanade submitted that if this be the case then the reliance

placed by the petitioners on
Section 42
to confer jurisdiction on this

Court is wholly misplaced. This is for the simple reason that for

Section 42
to apply, the first application had to be made to a Court

that had jurisdiction to entertain it and not otherwise.

10. Mr. Kanade then submitted that it is a settled position in

law that the parties cannot arrogate jurisdiction to a Court which

does not have inherent jurisdiction to adjudicate upon the dispute.

This being the case, the contentions raised by the petitioners about

respondent No.1 having waived its objection to the territorial

jurisdiction of this Court does not hold any merit. He submitted that

once the Courts in New Delhi were conferred exclusive jurisdiction by

virtue of the fact that the "seat" of arbitration was in New Delhi, the

same would mean that no other Court [save and except the ones at

New Delhi] would have jurisdiction, whether territorial or subject-

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matter, to entertain the present petition. He, therefore, submitted

that it cannot be contended that this Court had territorial jurisdiction

to decide the earlier
Section 34
Petition. If this be the case, then the

reliance placed on
Section 42
of the Arbitration Act is wholly

misconceived and it be, therefore, held that the present petition is

liable to be rejected on the ground of lack of jurisdiction.

11. On the other hand, Dr. Chandrachud, the learned counsel

appearing on behalf of the petitioners, submitted that since disputes

arose between the parties, respondent No.1 invoked arbitration

which culminated in the First Arbitral Award. The First Arbitral

Award was then challenged before this Court by filing Arbitration

Petition No.427 of 2013 [the earlier
Section 34
petition]. In the said

petition, respondent No.1 appeared on six occasions before this

Court, after which this Court set aside the First Arbitral Award vide

its order dated 17th August, 2015. At no point of time, did respondent

No.1 ever raise any objection to the territorial jurisdiction of this

Court to entertain the earlier
Section 34
petition [i.e. Arbitration

Petition No.427 of 2013]. Dr. Chandrachud submitted that this does

not stop here. Respondent No.1 thereafter accepted the order dated

17th August 2015 passed by this Court setting aside the First Arbitral

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Award and thereafter initiated fresh arbitration proceedings. On 9th

February, 2018, respondent No.1 nominated respondent No.2 as an

Arbitrator who ultimately passed the Second Arbitral Award and

which is impugned in the present petition. Dr. Chandrachud

submitted that respondent No.1, having participated in the

arbitration proceedings before this Court in the first round and not

having raised any objection to this Court's territorial jurisdiction, as

well as acting in furtherance of the order passed by this Court on 17th

August, 2015 by invoking a fresh arbitration, is now precluded from

contending that this Court did not have jurisdiction to entertain the

earlier
Section 34
petition [i.e. Arbitration Petition No.427 of 2013].

If this be the case, then
Section 42
of the Arbitration Act is clearly

applicable, and therefore, all subsequent proceedings arising out of

and with respect to the arbitration agreement between the parties,

would have to be filed only in this Court.

12. To substantiate his argument, Dr. Chandrachud took me

through the provisions of
Section 42
of the Arbitration Act and

contended that where with respect to an arbitration agreement any

application under
Part I of Arbitration Act
has been made in a Court,

that Court alone shall have jurisdiction over the arbitral proceedings

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and all subsequent applications arising out of that agreement and the

arbitral proceedings shall be made in that Court and in no other

Court. In the instant case, admittedly the present Arbitration Petition

filed under
Section 34
of the Arbitration Act arises out of the same

arbitration agreement between the parties as was the previous

Arbitration Petition filed under
Section 34
of the Act [i.e. Arbitration

Petition No.427 of 2013] and entertained by this Court. Therefore,

under
Section 42
of the Arbitration Act, this Court alone has the

jurisdiction to hear and decide the present petition, was the

submission.

13. Dr. Chandrachud also relied upon the decision of the

Supreme Court in the case of
State of West Bengal & Ors Vs.

Associated Contractors
(supra) to contend that the words used in

Section 42
of the Arbitration Act are "with respect to an arbitration

agreement" which are words of wide import and would take within its

sweep all applications made before, during or even after the arbitral

proceedings are over. He therefore submitted that in the instant case

it is this Court alone which would now have jurisdiction to entertain

all applications with respect to the "arbitration agreement" entered

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into between the petitioners and respondent No.1.

14. Dr. Chandrachud submitted that respondent No.1, by not

raising the issue of territorial jurisdiction of this Court when it

entertained the earlier
Section 34
petition. [i.e. Arbitration Petition

No.427 of 2013] and further, accepting the judgment/order passed

therein on 17th August, 2015, not only waived their objection to

territorial jurisdiction but in fact accepted the jurisdiction of this

Court. It is, therefore, now too late in the day for respondent No.1 to

contend that this Court did not have territorial jurisdiction to

entertain the earlier
Section 34
petition [i.e. Arbitration Petition

No.427 of 2013]. Dr. Chandrachud, submitted that in the case of

Snehalata Goel Vs Pushpalata
[(2019) 3 SCC 594] the Supreme

Court has clearly held that territorial jurisdiction of the Court does

not go to the root of the matter unlike subject matter jurisdiction. He,

therefore, submitted that the party who fails to object to the

territorial jurisdiction of the Court, cannot subsequently dispute its

territorial jurisdiction in another proceeding. Dr. Chandrachud

submitted that applying the aforesaid principle, respondent No.1, by

failing to object to the territorial jurisdiction of this Court to entertain

the earlier
Section 34
petition [i.e. Arbitration Petition No.427 of

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2013], it had waived its right to now object to the territorial

jurisdiction of this Court.

15. Dr. Chandrachud lastly submitted that the reliance placed

by respondent No.1 on the judgment of the Supreme Court in the case

of
Soma JV
(supra) is wholly misconceived. The Supreme Court
in

that case
had not dealt with a case like the present one in which the

party contesting the jurisdiction of the Court in the subsequent

application had failed to object to the territorial jurisdiction of the

Court in the previous application.

He submitted that if one looks at

the facts of the case in
Soma JV
(supra), it is clear that the same is

completely distinguishable on facts and has no application to the

present matter. Dr. Chandrachud submitted that the ratio of any

decision must be understood in the background of the facts of that

case.

He submitted that the case is only an authority for what it

actually decides and not what logically follows from it. In this regard

Dr. Chandrachud relied upon a decision of the Supreme Court in the

case of
Sarva Shramik Sanghatana (KV) Vs State of Maharashtra

[(2008) 1 SCC 494]. Relying upon this decision, Dr. Chandrachud

submitted that a little difference in the facts or additional facts may

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make a lot of difference in the precedential value of a decision.

Dr.

Chandrachud submitted that in the case of
Soma JV
(supra) the

facts revealed that the issue of jurisdiction was raised at the very first

instance and not a situation like the present one where the party had

waived its right to raise the issue of territorial jurisdiction. He,

therefore, submitted that there was no merit in the preliminary issue

of jurisdiction raised by respondent No.1 and hence the same ought

to be rejected.

16. I have heard the learned counsel for parties at great

length and have perused the papers and proceedings in the above

matter. To understand this controversy, it would be appropriate to

once again set out the admitted facts. Admittedly, respondent No.1

initiated arbitral proceedings which culminated into the First

Arbitral Award [Arbitral Award dated 30th January, 2013]. The First

Arbitral Award was challenged in this Court by filing Arbitration

Petition No.427 of 2013 under
Section 34
of the Arbitration Act [the

earlier
Section 34
petition]. Respondent No.1, who appeared on six

occasions before this Court in Arbitration Petition No.427 of 2013,

never contended or even raised the issue that this Court did not have

territorial jurisdiction to entertain Arbitration Petition No.427 of

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2013 [the earlier
Section 34
petition]. Ultimately, the First Arbitral

Award was set aside by this Court vide its order dated 17th August,

2015. After the order was passed by this Court on 17th August, 2015,

fresh arbitration proceedings were initiated by respondent No.1.

These fresh arbitration proceedings culminated into a fresh Arbitral

Award dated 4th August, 2019 [the Second Arbitral Award], and

which is impugned in the present petition. In this background, I have

to examine whether
Section 42
of the Arbitration Act would be

applicable to the facts and circumstances of the present case. If it is

not, then this Court would have no jurisdiction to entertain the above

petition considering that the "seat" of arbitration is at New Delhi.

17.
Section 42
of the Arbitration Act reads as under:-

"42. Jurisdiction. - Notwithstanding anything contained elsewhere
in this Part or in any other law for the time being in force,
where with respect to an arbitration agreement any application
under this Part has been made in a Court, that Court alone
shall have jurisdiction over the arbitral proceedings and all
subsequent applications arising out of that agreement and the
arbitral proceedings shall be made in that Court and in no
other Court."

(emphasis supplied)

18.
Section 42
stipulates that notwithstanding anything

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contained elsewhere in
Part I of the Arbitration Act
or in any other

law for the time being in force, where with respect to an arbitration

agreement, any application under Part I has been made in a Court,

that Court alone shall have jurisdiction over the arbitral proceedings

and all subsequent applications arising out of that agreement and the

arbitral proceedings shall be made in that Court and in no other

Court. For
Section 42
to apply, with respect to an arbitration

agreement, an application under Part I has to be made to a "Court".

Only then all subsequent applications arising out of the same

arbitration agreement have to be filed only that "Court". The word

"Court" is defined in
Section 2(1)(e)
of the Arbitration Act and reads

thus:-

"(e) "Court" means:-

(i) in the case of an arbitration other than international
commercial arbitration, the principal 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;

(ii) in the case of international commercial arbitration, 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, and in other cases,

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a High Court having jurisdiction to hear appeals from
decrees of Courts subordinate to that High Court."

19. The definition of the word "Court" stipulates that a Court

means, in a case of an arbitration other than an international

commercial arbitration, the Principal 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. In other words, on reading
Section 2(1)(e)(i)
[and

which is applicable in the present case], it is clear that any Civil Court

of a grade inferior to the Principal Civil Court or any Court of Small

Causes inherently lacks jurisdiction to entertain any application

under the
Arbitration Act
. This is for the simple reason that it is only

the Principal Civil Court of original jurisdiction in a district and which

includes the High Court exercising its ordinary original civil

jurisdiction that would have jurisdiction to entertain any application

under the
Arbitration Act
.

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20. Having seen the relevant provisions, I shall now examine

as to how they apply to the facts of the present case. Earlier, the First

Arbitral Award [Arbitral Award dated 30th January, 2013] was

challenged before this Court by filing Arbitration Petition No. 427 of

2013 [the earlier
Section 34
petition]. When that petition was

entertained and heard by this Court and although respondent No.1

appeared in the said matter on six occasions, no objection to the

territorial jurisdiction of this Court was taken by it. Thereafter, the

First Arbitral Award was set aside by this Court vide its order dated

17th August, 2015. After this order was passed, respondent No.1

accepted the said order and initiated fresh arbitration proceedings

which ultimately culminated in the Second Arbitral Award [the

impugned Award]. This being the factual position, it is quite clear that

respondent No.1, by its conduct, had submitted to the territorial

jurisdiction of this Court and waived its right to object to the same

when it entertained Arbitration Petition No.427 of 2013 [the earlier

Section 34
petition] and passed its order dated 17th August, 2015. It

is not as if this Court, when it entertained Arbitration Petition No. 427

of 2013 [the earlier
Section 34
petition], lacked inherent jurisdiction

to entertain the said petition. If at all, it did not have territorial

jurisdiction to entertain Arbitration Petition No. 427 of 2013 [the

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earlier
Section 34
petition]. However, as mentioned earlier,

respondent No.1 never raised any issue regarding the territorial

jurisdiction of this Court when it entertained and heard Arbitration

Petition No. 427 of 2013 [the earlier
Section 34
petition] and hence

waived the same. The reason I say this is because it is now well settled

that when an objection to the territorial jurisdiction of a Court is not

taken by a party, he is deemed to have waived it and cannot raise that

issue/objection in subsequent proceedings.
In this regard, the

reliance placed by Dr. Chandrachud on the Judgment of the Supreme

Court in the case of
Sneh Lata Goel Vs. Pushplata and ors
[(2019)

3 SCC 594] is well founded. In the facts of that case, an objection was

raised in execution regarding the territorial jurisdiction of the Court

that passed the decree. It did not relate to subject-matter jurisdiction.

The Supreme Court inter alia held that an objection to territorial

jurisdiction does not travel to the root of or to the inherent lack of

jurisdiction of a civil court to entertain the suit and hence can be

waived. The relevant portion of this decision reads thus:-

"18. The Court in Kiran Singh case [
Kiran Singh v. Chaman Paswan
, AIR
1954 SC 340] disallowed the objection to jurisdiction on the ground
that no objection was raised at the first instance and that the party
filing the suit was precluded from raising an objection to jurisdiction

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of that court at the appellate stage. This Court concluded thus: (AIR p.
345, para 16)
"16. ... If the law were that the decree of a court which would
have had no jurisdiction over the suit or appeal but for the
overvaluation or undervaluation should be treated as a nullity,
then of course, they would not be estopped from setting up
want of jurisdiction in the court by the fact of their having
themselves invoked it. That, however, is not the position under

Section 11
of the Suits Valuation Act."

Thus, where the defect in jurisdiction is of kind which falls within

Section 21
CPC or
Section 11
of the Suits Valuation Act, 1887, an
objection to jurisdiction cannot be raised except in the manner and
subject to the conditions mentioned thereunder. Far from helping the
case of the respondent, the judgment in
Kiran Singh [Kiran
Singh v. Chaman Paswan
, AIR 1954 SC 340] holds that an objection to
territorial jurisdiction and pecuniary jurisdiction is different from an
objection to jurisdiction over the subject-matter. An objection to the
want of territorial jurisdiction does not travel to the root of or to the
inherent lack of jurisdiction of a civil court to entertain the suit.

19. In Hira Lal Patni v. Kali Nath [Hira Lal Patni v. Kali Nath, AIR 1962
SC 199] , a person filed a suit on the original side of the High Court of
Judicature at Bombay for recovering commission due to him. The
matter was referred to arbitration and it resulted in an award in favour
of the plaintiff. A decree was passed in terms of the award and was
eventually incorporated in a decree of the High Court. In execution
proceedings, the judgment-debtor resisted it on the ground that no
part of the cause of action had arisen in Bombay, and therefore, the
High Court had no jurisdiction to try the cause and that all proceedings
following thereon where wholly without jurisdiction and thus a nullity.
Rejecting this contention, a four-Judge Bench of this Court held thus:

(AIR p. 201, para 4)

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"4. The objection to its [Bombay High Court]
territorial jurisdiction is one which does not go to the competence
of the court and can, therefore, be waived. In the instant case,
when the plaintiff obtained the leave of the Bombay High Court
on the original side, under Clause 12 of the Letters Patent, the
correctness of the procedure or of the order granting the leave
could be questioned by the defendant or the objection could
be waived by him. When he agreed to refer the matter to
arbitration through court, he would be deemed to have waived
his objection to the territorial jurisdiction of the court, raised by
him in his written statement. It is well settled that the objection
as to local jurisdiction of a court does not stand on the same
footing as an objection to the competence of a court to try a case.

Competence of a court to try a case goes to the very root of the
jurisdiction, and where it is lacking, it is a case of inherent lack of
jurisdiction. On the other hand, an objection as to the local
jurisdiction of a court can be waived and this principle has been
given a statutory recognition by enactments like
Section 21
of the
Code of Civil Procedure."

(emphasis supplied)

20. In Harshad Chiman Lal Modi v. DLF Universal Ltd. [Harshad Chiman
Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791] , this Court held that
an objection to territorial and pecuniary jurisdiction has to be taken at
the earliest possible opportunity. If it is not raised at the earliest, it
cannot be allowed to be taken at a subsequent stage. This Court held
thus: (SCC pp. 803-04, para 30)

"30. ... The jurisdiction of a court may be classified into several
categories. The important categories are (i) territorial or local
jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over
the subject-matter. So far as territorial and pecuniary
jurisdictions are concerned, objection to such jurisdiction has to
be taken at the earliest possible opportunity and in any case at
or before settlement of issues. The law is well settled on the
point that if such objection is not taken at the earliest, it cannot
be allowed to be taken at a subsequent stage. Jurisdiction as to

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subject-matter, however, is totally distinct and stands on a
different footing. Where a court has no jurisdiction over the
subject-matter of the suit by reason of any limitation imposed
by statute, charter or commission, it cannot take up the cause
or matter. An order passed by a court having no jurisdiction is a
nullity."

21.
In
Hasham Abbas Sayyad v. Usman Abbas Sayyad [Hasham Abbas
Sayyad
v. Usman Abbas Sayyad, (2007) 2 SCC 355] , a two-Judge Bench
of this Court held thus: (SCC pp. 363-64, para 24)

"24. We may, however, hasten to add that a distinction must be
made between a decree passed by a court which has no
territorial or pecuniary jurisdiction in the light of
Section 21
of
the Code of Civil Procedure, and a decree passed by a court
having no jurisdiction in regard to the subject-matter of the suit.
Whereas in the former case, the appellate court may not
interfere with the decree unless prejudice is shown, ordinarily
the second category of the cases would be interfered with."

22. Similarly, in
Mantoo Sarkar v. Oriental Insurance Co. Ltd. [Mantoo
Sarkar
v. Oriental Insurance Co. Ltd., (2009) 2 SCC 244 : (2009) 1 SCC
(Civ) 482 : (2009) 1 SCC (Cri) 738] , a two-Judge Bench of this Court
held thus: (SCC p. 249, para 20)

"20. A distinction, however, must be made between a
jurisdiction with regard to the subject-matter of the suit and
that of territorial and pecuniary jurisdiction. Whereas in the case
falling within the former category the judgment would be a
nullity, in the latter it would not be. It is not a case where the
Tribunal had no jurisdiction in relation to the subject-matter of
claim ... in our opinion, the court should not have, in the absence
of any finding of sufferance of any prejudice on the part of the
first respondent, entertained the appeal."

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23. The objection which was raised in execution in the present case did
not relate to the subject-matter of the suit. It was an objection to
territorial jurisdiction which does not travel to the root of or to the
inherent lack of jurisdiction of a civil court to entertain the suit. An
executing court cannot go behind the decree and must execute the
decree as it stands.
In
Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman [Vasudev Dhanjibhai Modi
v. Rajabhai Abdul Rehman, (1970) 1
SCC 670] , the petitioner filed a suit in the Court of Small Causes,
Ahmedabad for ejecting the defendant tenant. The suit was eventually
decreed in his favour by this Court. During execution proceedings, the
defendant tenant raised an objection that the Court of Small Causes
had no jurisdiction to entertain the suit and its decree was a nullity.
The court executing the decree and the Court of Small Causes rejected
the contention. The High Court reversed the order of the Court of Small
Causes and dismissed the petition for execution. On appeal to this
Court, a three-Judge Bench of this Court, reversed the judgment of the
High Court and held thus: (SCC pp. 672-73, paras 6 & 8)

"6. A court executing a decree cannot go behind the decree:

between the parties or their representatives it must take the
decree according to its tenor, and cannot entertain any
objection that the decree was incorrect in law or on facts. Until
it is set aside by an appropriate proceeding in appeal or revision,
a decree even if it be erroneous is still binding between the
parties.

***

8. ... If the decree is on the face of the record without jurisdiction
and the question does not relate to the territorial jurisdiction or
under
Section 11
of the Suits Valuation Act, objection to the
jurisdiction of the court to make the decree may be raised;

where it is necessary to investigate facts in order to determine
whether the court which had passed the decree had no
jurisdiction to entertain and try the suit, the objection cannot be
raised in the execution proceeding."

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24. In this background, we are of the view that the High Court was
manifestly in error in coming to the conclusion that it was within the
jurisdiction of the executing court to decide whether the decree in the
suit for partition was passed in the absence of territorial jurisdiction."

(emphasis supplied)

21. From this decision it is clear that when an objection to the

territorial jurisdiction of a Court is not taken at the earliest available

opportunity it cannot be raised in subsequent proceedings. The policy

underlying the same is that when a case had been tried by a Court on

the merits and judgment rendered, it should not be liable to be

reversed purely on technical grounds, unless it has resulted in failure

of justice. The policy is to treat objections to territorial jurisdiction as

technical and not open to consideration by an Appellate Court or in

subsequent proceedings, unless there has been a prejudice on the

merits. In the facts of the present case, I have no hesitation in holding

that respondent No.1, having submitted to the jurisdiction of this

Court by appearing in Arbitration Petition No.427 of 2013 and not

raising any objection to its territorial jurisdiction, is now precluded

from contending that this Court did not have territorial jurisdiction

to entertain Arbitration Petition No.427 of 2013 [the earlier
Section
petition] and which was finally disposed of by this Court vide its

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order dated 17th August, 2015.

22. Once having held that respondent No.1 is now precluded

from contending that this Court did not have jurisdiction to entertain

Arbitration Petition No.427 of 2013 [the earlier
Section 34
petition],

then clearly, by virtue of the provisions of
Section 42
, this Court alone

would have jurisdiction to entertain the present petition filed under

Section 34
of the Arbitration Act to challenge the Second Arbitral

Award [the impugned Award]. This is for the simple reason because

Section 42
stipulates that notwithstanding anything contained

elsewhere in
Part I of the Arbitration Act
or in any other law for the

time being in force, where with respect to an arbitration agreement,

any application under Part I has been made in a Court, that Court

alone shall have jurisdiction over the arbitral proceedings and all

subsequent applications arising out of that agreement and the

arbitral proceedings shall be made in that Court and in no other

Court. This Court is certainly a Court as defined in
section 2(1)(e)(i)

in which the earlier
Section 34
petition was filed and entertained

[Arbitration Petition No.427 of 2013] and the present petition is also

with respect to the same arbitration agreement as was in Arbitration

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Petition No.427 of 2013 [the earlier
section 34
petition]. Hence

present petition filed under
Section 34
impugning the Second

Arbitral Award would have to be filed only in this Court and no other

Court.

23. It is true that once the "seat" of arbitration is decided by

the parties, then it is the Courts where the "seat" is located would

have exclusive jurisdiction to decide all applications arising out the

arbitration. However, at least as far as domestic arbitrations are

concerned, the same is a question of territorial jurisdiction. It is not

as if this Court, by entertaining Arbitration Petition No.427 of 2013

[the earlier
Section 34
petition], despite the "seat" being located at

New Delhi, inherently lacked jurisdiction to entertain it. In fact,

respondent No.1, despite appearing in the said petition before this

Court, did not object to its territorial jurisdiction and also acted in

furtherance of the order passed therein. Not having taken this

objection in the earlier
Section 34
petition [Arbitration Petition

No.427 of 2013] filed in this Court and submitting to its jurisdiction,

it is now too late in the day for respondent No.1 to contend that this

Court does not have jurisdiction to entertain the present
Section 34

petition because this Court lacked jurisdiction to entertain the earlier

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Section 34
petition [Arbitration Petition No.427 of 2013].

24. This now only leaves me to deal with the decision of the

Supreme Court in the case of
Soma JV
(supra) on which heavy

reliance was placed by Mr. Kanade. The facts of that case would show

that the arbitration clause contemplated that the arbitration

proceedings were to be held in New Delhi / Faridabad, India. On

16.5.2011 a notice of arbitration was issued by the petitioner to the

respondent in regard to the payment of compensation for losses

suffered due to abnormal delays and additional costs as a result of

hindrances caused by the respondent. A three-member Arbitral

Tribunal was constituted as per clause 67.3 of the agreement which

ultimately culminated into a unanimous Award at New Delhi under

which the claims of the petitioner aggregating to INR

424,81,54,096.29 were allowed, together with simple interest at 14%

p.a. till the date of actual payment. On 3rd January, 2017, the

respondent filed an application under
Section 34
of the Arbitration

Act, seeking to set aside the Award before the Court of the District

and Sessions Judge, Faridabad, Haryana. On 28th April, 2017, the

petitioner filed an application under Section 151 read with
Order VII

Rule 10 of the Code of Civil Procedure
, 1908 and
Section 2(1)(e)(i)
of

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the
Arbitration Act
, seeking a return of the petition for presentation

before the appropriate Court at New Delhi and/or the District Judge

at Dhemaji, Assam. In November 2017, after the constitution of a

Special Commercial Court at Gurugram, the
Section 34
petition filed

at Faridabad was transferred to the said Gurugram Commercial

Court and numbered as Arbitration Case No. 74 (CIS

No.ARB/118/2017). On 21st December, 2017, the Special Commercial

Court, Gurugram allowed the application of the petitioner and

returned the
Section 34
petition for presentation to the proper court

having jurisdiction at New Delhi. Being aggrieved by that order, the

respondent filed an appeal under
Section 37
of the Arbitration Act

before the High Court of Punjab and Haryana at Chandigarh. The

Punjab and Haryana, High Court, inter alia, held that Delhi, being a

convenient venue where the arbitral proceedings were held and not

the "seat" of the arbitration proceedings, Faridabad, would have

territorial jurisdiction on the basis of the cause of action having

arisen in part in Faridabad and as a result the appeal was allowed and

the judgment of the Special Commercial Court, Gurugram was set

aside. It was this order of the Punjab and Haryana High Court that

was assailed before the Supreme Court. The Supreme Court allowed

the appeal and set aside the impugned judgment passed by the Punjab

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and Haryana High Court. The argument canvassed before the

Supreme Court in support of the Punjab and Haryana High Court

decision was that the arbitration clause did not expressly state that

either New Delhi or Faridabad was to be the "seat" of the Arbitral

Tribunal, and therefore, the arbitration clause only referred to a

convenient venue, and the fact that the sittings were held at New

Delhi would not, therefore, make New Delhi the "seat" of the

arbitration under
Section 20(1)
of the Arbitration Act. Since the

agreements were signed in Faridabad, and since the notices were sent

by the petitioners to the respondent's office, part of the cause of

action clearly arose in Faridabad as a result of which the Courts in

Faridabad would be clothed with jurisdiction to decide the
Section 34

application. The alternate argument canvassed was that even

assuming that New Delhi was the "seat" of arbitration, both New Delhi

and Faridabad would have concurrent jurisdiction, New Delhi being a

neutral forum at which no part of the cause of action arose, and

Faridabad being a chosen forum where a part of the cause of action

had arisen. When read with
Section 42
of the Arbitration Act, since

the Court at Faridabad was first approached by filing an application

under
Section 34
of the Arbitration Act, that Court would alone have

jurisdiction, was the argument. The facts and the arguments

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canvassed in this case would reveal that the issue of jurisdiction was

raised at the very first instance and which was upheld by the Special

Commercial Court, Gurugram and set aside by the Punjab and

Haryana High Court. The argument that was canvassed and rejected

by the Supreme Court was that since Faridabad Court was

approached first, it would have jurisdiction by virtue of
Section 42
of

the Arbitration Act. This was negated by the Supreme Court by

holding that Faridabad did not have jurisdiction considering that the

"seat" of the arbitration was at New Delhi. It is in this light and in this

factual scenario that one has to read the findings given by the

Supreme Court in paragraph 59. It was not a case where no issue

regarding jurisdiction was raised in the first instance and was

thereafter raised in a subsequent application, as is the case before me.

For ready reference, paragraph 59 is reproduced hereunder:-

"59. Equally incorrect is the finding in
Antrix Corpn. Ltd. [Antrix Corpn.
Ltd. v. Devas Multimedia (P) Ltd.
, 2018 SCC OnLine Del 9338] that

Section 42
of the Arbitration Act, 1996 would be rendered ineffective
and useless.
Section 42
is meant to avoid conflicts in jurisdiction of
courts by placing the supervisory jurisdiction over all arbitral
proceedings in connection with the arbitration in one court exclusively.
This is why the section begins with a non obstante clause, and then
goes on to state "...where with respect to an arbitration agreement any
application under this part has been made in a court..." It is obvious that
the application made under this part to a court must be a court which
has jurisdiction to decide such application. The subsequent holdings
of this court, that where a seat is designated in an agreement, the

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courts of the seat alone have jurisdiction, would require that all
applications under Part I be made only in the court where the seat is
located, and that court alone then has jurisdiction over the arbitral
proceedings and all subsequent applications arising out of the arbitral
agreement. So read,
Section 42
is not rendered ineffective or useless.
Also, where it is found on the facts of a particular case that either no
"seat" is designated by agreement, or the so-called "seat" is only a
convenient "venue", then there may be several courts where a part of
the cause of action arises that may have jurisdiction. Again, an
application under
Section 9
of the Arbitration Act, 1996 may be
preferred before a court in which part of the cause of action arises in a
case where parties have not agreed on the "seat" of arbitration, and
before such "seat" may have been determined, on the facts of a
particular case, by the Arbitral Tribunal under
Section 20(2)
of the
Arbitration Act, 1996. In both these situations, the earliest application
having been made to a court in which a part of the cause of action
arises would then be the exclusive court under
Section 42
, which would
have control over the arbitral proceedings. For all these reasons, the
law stated by the Bombay and Delhi High Courts in this regard is
incorrect and is overruled."

25. One must not lose sight of the fact that these observations

cannot be viewed divorced from the facts of the case and the

arguments canvassed by the parties. The facts of our case are wholly

different. As mentioned earlier, the issue of territorial jurisdiction

of this Court was never raised by respondent No.1 when the earlier

Section 34
petition was filed in this Court. In fact, respondent No.1

accepted the order passed by this Court and proceeded to initiate

fresh arbitration proceedings. This being the case, I find that the

factual situation before me is totally different from the one in the case

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of
Soma JV
(supra), and therefore, has no application over here.

26. It is now a well settled proposition that the ratio of any

decision must be understood in the background of the facts of that

case. It has been said a long time ago that a case is only an authority

for what it actually decides and not what logically follows from it. The

Supreme Court in the case of
Sarva Shramik Sanghatana (KV
)

(supra) has succinctly set out this proposition in paragraphs 14 to

18 which read thus:-

"14. On the subject of precedents Lord Halsbury, L.C., said
in Quinn v. Leathem [1901 AC 495 : (1900-1903) All ER Rep 1 (HL)] : (All ER
p. 7 G-I)
"Before discussing Allen v. Flood [1898 AC 1 : (1895-1899) All ER Rep
52 (HL)] and what was decided therein, there are two observations
of a general character which I wish to make; and one is to repeat
what I have very often said before--that every judgment must be
read as applicable to the particular facts proved or assumed to be
proved, since the generality of the expressions which may be found
there are not intended to be expositions of the whole law, but are
governed and qualified by the particular facts of the case in which
such expressions are to be found. The other is that a case is only an
authority for what it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to follow logically from it.
Such a mode of reasoning assumes that the law is necessarily a
logical code, whereas every lawyer must acknowledge that the law
is not always logical at all."

(emphasis supplied)
We entirely agree with the above observations.

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15.
In
Ambica Quarry Works v. State of Gujarat
[(1987) 1 SCC 213] (vide
SCC p. 221, para 18) this Court observed:

"18. The ratio of any decision must be understood in the
background of the facts of that case. It has been said long time ago
that a case is only an authority for what it actually decides, and not
what logically follows from it."

16.
In
Bhavnagar University v. Palitana Sugar Mill (P) Ltd.
[(2003) 2 SCC
111] (vide SCC p. 130, para 59) this Court observed:

"59. ... It is also well settled that a little difference in facts or
additional facts may make a lot of difference in the precedential value
of a decision."

(emphasis supplied)

17. As held in
Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani
[(2004) 8 SCC
579 : AIR 2004 SC 4778] a decision cannot be relied on without disclosing
the factual situation. In the same judgment this Court also observed: (SCC
pp. 584-85, paras 9-12)

"9. Courts should not place reliance on decisions without discussing
as to how the factual situation fits in with the fact situation of the
decision on which reliance is placed. Observations of courts are
neither to be read as Euclid's theorems nor as provisions of a statute
and that too taken out of their context. These observations must be
read in the context in which they appear to have been stated.
Judgments of courts are not to be construed as statutes. To interpret
words, phrases and provisions of a statute, it may become necessary
for judges to embark into lengthy discussions but the discussion is
meant to explain and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words of statutes; their
words are not to be interpreted as statutes.
In London Graving Dock
Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC at p. 761),
Lord MacDermott observed: (All ER p. 14 C-D)
'The matter cannot, of course, be settled merely by treating
the ipsissima verba of Willes, J. as though they were part of
an Act of Parliament and applying the rules of interpretation
appropriate thereto. This is not to detract from the great

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weight to be given to the language actually used by that
most distinguished Judge, ...'

10. In Home Office v. Dorset Yacht Co. Ltd. [1970 AC 1004 : (1970) 2
WLR 1140 : (1970) 2 All ER 294 (HL)] Lord Reid said,
'Lord Atkin's speech ... is not to be treated as if it were a
statutory definition. It will require qualification in new
circumstances.' (All ER p. 297g)
Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1
WLR 1062 : (1971) 2 All ER 1267] , observed: (All ER p. 1274d)
'One must not, of course, construe even a reserved judgment
of even Russell, L.J. as if it were an Act of Parliament;'
And, in British Railways Board v. Herrington [1972 AC 877 : (1972)
2 WLR 537 : (1972) 1 All ER 749 (HL)] Lord Morris said: (All ER p.
761c)
'There is always peril in treating the words of a speech or a
judgment as though they were words in a legislative
enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular
case.'

11. Circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases.
Disposal of cases by blindly placing reliance on a decision is not
proper.

12. The following words of Hidayatullah, J. in the matter of applying
precedents have become locus classicus: (
Abdul Kayoom v. CIT
[AIR
1962 SC 680] , AIR p. 688, para 19)

'19. ... Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the entire

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aspect, in deciding such cases, one should avoid the
temptation to decide cases (as said by Cardozo) by matching
the colour of one case against the colour of another. To
decide therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all decisive.'
***
'Precedent should be followed only so far as it marks the path
of justice, but you must cut the dead wood and trim off the side
branches else you will find yourself lost in thickets and
branches. My plea is to keep the path to justice clear of
obstructions which could impede it.' "

(emphasis supplied)

18. We have referred to the aforesaid decisions and the principles laid
down therein, because often decisions are cited for a proposition without
reading the entire decision and the reasoning contained therein. In our
opinion, the decision of this Court in Sarguja Transport case [(1987) 1 SCC
5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88] cannot be treated as a Euclid's
formula."

(emphasis supplied)

27.
In these circumstances, I find that the reliance placed by

Mr. Kanade on the judgment of the Supreme Court in the case of
Soma

JV
(supra) is wholly misplaced and does not carry his case any

further.

28. Even the decision of the Supreme Court in the case of

State of West Bengal & Ors. Vs Associated Contractors
(supra)

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does not support the case of respondent No.1. The facts of this case

reveal that in 1995-1996 an item rate tender was duly executed and

signed between the respondent - Associated Contractors and the

Superintending Engineer concerned for execution of the work of

excavation and lining of Teesta-Jaldhaka Main Canal from Chainage

3 k.m. to 3.625 k.m. in Police Station Mal, District Jalpaiguri, West

Bengal. Paragraph 25 of the said item rate tender and the contract

contained an arbitration clause. The respondent filed an application

under
Section 9
of the Arbitration Act, seeking interim orders in the

High Court of Calcutta. The Calcutta High Court, after granting leave

under Clause 12 of the Letters Patent, passed an ad-interim ex-parte

injunction order. This order was continued from time to time until it

was confirmed by an order dated 10th December, 1998. From the

aforesaid order, an appeal was filed and in the appeal the interim

order dated 10th December, 1998 was stayed. The Arbitrator was,

however, asked to complete the proceedings before him which would

go on uninterrupted. In the meanwhile, several orders were passed

by the High Court regarding the remuneration of the Arbitrator and

payment of the same. Finally, the arbitration proceedings culminated

in an Award dated 30th June, 2004. On 21st September, 2004, the

State of West Bengal filed an application under
Section 34
of the

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Arbitration Act
to set aside the Arbitral Award before the Principal

Civil Court of the learned District Judge at Jalpaiguri, West Bengal.

On 10th December, 2004 the respondent filed an application under

Article 227
of the Constitution of India challenging the jurisdiction of

the District Court at Jalpaiguri. By the impugned judgment dated

11th April, 2005, a Single Judge of the Calcutta High Court allowed

the petition under
Article 227
of the Constitution of India inter alia

holding that since the parties had already submitted to the

jurisdiction of the Calcutta High Court in its ordinary original civil

jurisdiction in connection with which earlier proceedings had arisen

out of the said contract, the jurisdiction of the Court of the learned

District Judge at Jalpaiguri to entertain the
Section 34
application

for setting aside the award, was specifically excluded under
Section
of the Arbitration Act. It was this order that was assailed before

the Supreme Court. The argument canvassed before the Supreme

Court by the State of West Bengal was that the application made

under
Section 9
of the Arbitration Act before the Calcutta High Court,

was itself without jurisdiction and hence
Section 42
of the Arbitration

Act would not be attracted. It was argued that the reason for the

Division Bench to stay the interim order passed under
Section 9
of

the Arbitration Act, was because it was convinced prima facie that

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the High Court had no jurisdiction in the matter. Whilst negating this

contention, the Supreme Court in paragraphs 25 & 26 inter alia held

as under:-

"25. Our conclusions therefore on
Section 2(1)(e)
and
Section 42
of the
Arbitration Act, 1996 are as follows:

(a)
Section 2(1)(e)
contains an exhaustive definition marking out
only the Principal Civil Court of Original Jurisdiction in a district
or a High Court having original civil jurisdiction in the State, and
no other court as "court" for the purpose of
Part I of the
Arbitration Act, 1996
.

(b) The expression "with respect to an arbitration agreement"

makes it clear that
Section 42
will apply to all applications made
whether before or during arbitral proceedings or after an award
is pronounced under Part I of the 1996 Act.

(c) However,
Section 42
only applies to applications made under
Part I if they are made to a court as defined. Since applications
made under
Section 8
are made to judicial authorities and since
applications under
Section 11
are made to the Chief Justice or
his designate, the judicial authority and the Chief Justice or his
designate not being court as defined, such applications would
be outside
Section 42
.

(d)
Section 9
applications being applications made to a court
and
Section 34
applications to set aside arbitral awards are
applications which are within
Section 42
.

(e) In no circumstances can the Supreme Court be "court" for
the purposes of Section 2(1)(e), and whether the Supreme Court
does or does not retain seisin after appointing an arbitrator,

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applications will follow the first application made before either
a High Court having original jurisdiction in the State or a
Principal Civil Court having original jurisdiction in the district, as
the case may be.

(f) Section 42 will apply to applications made after the arbitral
proceedings have come to an end provided they are made
under Part I.

(g) If a first application is made to a court which is neither a
Principal Court of Original Jurisdiction in a district or a High
Court exercising original jurisdiction in a State, such application
not being to a court as defined would be outside
Section 42
.
Also, an application made to a court without subject-matter
jurisdiction would be outside
Section 42
.

The reference is answered accordingly.

26. On the facts of the present case, nothing has been shown as to
how the High Court of Calcutta does not possess jurisdiction. It has
been mentioned above that leave under Clause 12 has been granted.
In the circumstances of the present case, therefore, the judgment
dated 11-4-2005 passed by the High Court of Calcutta is correct and
does not need any interference. Civil Appeal No. 6691 of 2005 and Civil
Appeal No. 4808 of 2013 are hereby dismissed."

29. I fail to see how this decision supports the case of

respondent No.1. In fact, this decision categorically holds that the

expression "with respect to the Arbitration Agreement" makes it

clear that
Section 42
of the Arbitration Act will apply to all

applications made before or during the arbitral proceedings or after

an Award is pronounced under
Part I of the Arbitration Act
. It further

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holds that if the first application is made to a Court which is neither

the Principal Civil Court of original jurisdiction in a district, or a High

Court exercising original jurisdiction, such an application not being

to a Court as defined, would be outside the purview of
Section 42
. Also

an application made to a Court without subject-matter jurisdiction

would be outside the purview of
Section 42
. In the facts of the present

case, the first application was made before this Court under
Section
of the Arbitration Act challenging the First Arbitral Award dated

30th January, 2013. It is not as if this Court whilst entertaining the

said petition was not the High Court exercising original jurisdiction

or did not have subject-matter jurisdiction to entertain the said

petition. If at all, it did not have territorial jurisdiction and which was

waived by respondent No.1 as discussed earlier. This being the case, I

find that the reliance placed by respondent No.1 on this decision also

is wholly misplaced.

30. For all the aforesaid reasons I hold that this Court has

jurisdiction to entertain the above
Section 34
Petition. It is

accordingly listed for admission on 6th April, 2021.

31. This order shall be digitally signed by the Private

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Secretory /Personal Assistant of this Court. All concerned shall act

on production by fax or e-mail of a digitally signed copy of this order.

(B. P. COLABAWALLA, J. )

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