The High Court · 2019
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Jurisdiction) C.M.P. No. 35 of 2021 Centex (India) Enginers (P) Ltd., having its registered office at 21, Hemanta Basu Sarani, Room No.315 (3rd Floor), PO-GPO, PS-Hare Street, District- Kolkata (West Bengal), through Mr. Sushanta Kumar Basu, Director, aged about 71 years, s/o Late Sushil Kumar Bose, r/o FD 218, Salt Lake, PO Kolkata 106, PS-South Bidhannagar, District 24 Parganas (North) ..…. . Petitioner Versus Union of India through the General Manager, South Eastern Railway, 11, Garden Reach Road, PO-Garden Reach, PS-Garden Reach, District-Kolkata (West Bengal) ..… Opposite Party
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Indrajit Sinha, Advocate For U.O.I. : Mr. Anil Kumar, Addl. SGI Mr. Gautam Kumar, CGC Order No.07 /Dated: 13 th January 2023 ------- This petition has been filed by Centex (India) Engineers (P) Ltd., to challenge the order dated 16th November 2019 passed in Original Suit No.15 of 2019 which has been re-registered as Arbitration Case No.01 of 2019. By this order, the Commercial Court at Dhanbad has declined to entertain the application filed under section 34 of the Arbitration and Conciliation Act, 1996 (in short, “AC Act”) to challenge the Award dated 16th November 2019. 2. The Commercial Court at Dhanbad has referred to the provisions under Clause (e) of sub-section 1 to section 2 of the AC Act and placed reliance on the judgments of the Hon'ble Supreme Court in “P. Anand Gajapathi Raju v. P.V.G. Raju” AIR 2000 SC 1886, “State of W.B. v. Associated Contractors” (2015) 1 SCC 32 and “State of Jharkhand and others v. Hindustan Construction Company Limited” (2018) 2 SCC 602, to arrive at the conclusion that the Commercial Court at Dhanbad has no jurisdiction to entertain the aforesaid application under section 34 of the AC Act. 3. The Commercial Court at Dhanbad has dismissed the award revocation petition observing as under: 2 C.M.P No. 35 of 2021 “8. Admittedly, CENTEX (India) Engineering Pvt. Ltd. has filed A.P. No.791/2017 under Sec.11 of the Arbitration and Conciliation Act 1996 before Hon'ble the High Court of Kolkata for appointment of an arbitration tribunal along with other reliefs for redressal of a dispute between them and the General Manager, South Eastern Railway. Altogether six claims were made. Vide order dated February 15, 2018, the Hon'ble Kolkata High Court has been pleased to allow A.P. No.791/2017 and the arbitral tribunal consisting Hon'ble Mr. Justice Subhro Kamal Mukherjee, former Chief Justice of Hon'ble Karnatka High Court, Hon'ble Mr. Justice Jayanta Kumar Biswas, former Judge of Hon'ble Calcutta High Court and Hon'ble Mr. Justice Tapan Kumar Dutt, former Judge of Hon'ble Calcutta High Court. The Hon'ble tribunal has been pleased to pass the award on January 16, 2019 which is under challenge in this Court. The sole point of determination is whether the case is pending before this Court or not? 9. As per provisions of Arbitration and Conciliation Act, 1996, the Expression Court is defined U/s 2 (1) (c) of the Arbitration and Conciliation Act. The court means (1) in the case of an arbitration, other than Internation 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 question forming 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, a High Court having jurisdiction to hear appeal from decree of Courts subordinate to that High Court. As per settled principle of law court to which the party shall 10. have recourse to challenge the award would be the court as defined in clause (e) of section 2 of the new Act. The reliance may be placed upon the case of P. Anand Gajapathi Raju vs. P.V.G. Raju reported in AIR 2000 SC 1886. Admittedly the learned Arbitrator was appointed by the Hon'ble Jharkhand High Court as per the provision of section 11 of the Arbitration and Conciliation Act, 1996.” 4. Sub-clause (i) to Clause (e) of sub-section 1 to section 2 of the AC Act defines the expression “Court” to mean the Principle Civil Court of original jurisdiction in a district which may include the High Court in exercise of its ordinary original civil jurisdiction. 5. Sub-clause (i) to Clause (e) of sub-section 1 to section 2 of the AC Act is extracted below: “2(1) (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 3 C.M.P No. 35 of 2021 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.” 6. Under the Bengal, Agra and Assam Civil Courts Act, 1887, the Court of Civil Judge (Senior Division) is the Principal Civil Court of original jurisdiction in a district. 7. While the aforesaid is the position in law, I find no substance in the stand put forth by the petitioner that the Award dated 16th November 2019 can be challenged in the Court at Dhanbad on the ground that a part of cause of action has arisen within the jurisdiction of the Dhanbad Court. 8. For the purpose of clarity, the judgment in “BGS SGS SOMA JV v. NHPC Ltd.” (2020) 4 SCC 234 may usefully be referred to wherein the Hon'ble Supreme Court has held as under: “98. However, the fact that in all the three appeals before us the proceedings were finally held at New Delhi, and the awards were signed in New Delhi, and not at Faridabad, would lead to the conclusion that both parties have chosen New Delhi as the “seat” of arbitration under Section 20(1) of the Arbitration Act, 1996. This being the case, both parties have, therefore, chosen that the courts at New Delhi alone would have exclusive jurisdiction over the arbitral proceedings. Therefore, the fact that a part of the cause of action may have arisen at Faridabad would not be relevant once the “seat” has been chosen, which would then amount to an exclusive jurisdiction clause so far as courts of the “seat” are concerned.” 9. Having regard to the aforesaid being the position in law, I find no error in the order dated 16th November 2019 passed in Original Suit No.15 of 2019 (Arbitration Case No.01 of 2019) and, accordingly, C.M.P No.35 of 2021 is dismissed. sudhir (Shree Chandrashekhar, J.)