The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 31087 of 2023 Litadity A Deb Appellant Mr. D.C.Mohanty, Sr. Advocate with Mr. M. Das, Advocate …. Tara Ranjan Patnaik and others …. Respondents -versus- CORAM: THE CHIEF JUSTICE JUSTICE M.S.SAHOO Order No . 25.09.2023
Decision
ORDER 1. 1. This matter is taken up through hybrid mode. 2. By means of this writ petition filed under Articles 226 & 227 of the Constitution of India, the order dated 15.09.2016 passed in ARBP No. 5 of 2015 has been challenged. 3. Mr. D.C. Mohanty, learned senior counsel has submitted that within the definition of section 2(e) of the Arbitration & Conciliation Act, 1996 (for short the Act), “High Courts” except the charted High Courts, no other High Courts are included. For the purpose of reference, we reproduce section 2(e) : in “(e) “Court” means— than (i) international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the case of an arbitration other Page 1 of 6 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) international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;” the subject-matter of the case of forming in 4. Mr. Mohanty, learned senior counsel has relied on several decisions, but decision in State of West Bengal and others v. Associated Contractors : AIR 2015 SC 260 has attracted our attention. In that case, the controversy arose from an application filed under section 34 of the Arbitration and Conciliation Act, 1996 before the principal civil court, i.e. the court of the District Judge, Jalpaiguri, West Bengal. The respondent of the said application challenged the maintainability of such application under Article 226 of the Constitution of India contending that the court of the District Judge, Jalpaiguri did not have the requisite jurisdiction. The Calcutta High Court held that the court of the District Judge, Jalpaiguri had the jurisdiction and that was the only Court which would entertain an application for setting aside the award. It has been noticed that Section 42 of the said Act embodied expression “has been made in a court competent Page 2 of 6 to entertain it” but that is no longer there in section 42. That change is of some consequences. Section 42 starts with a non-obstante clause which does away with anything which may be inconsistent with the Section either in Part-I of the Arbitration Act, 1996 or in any other law for the time being in force. The expression “with respect to arbitration agreement” widens the scope of Section 42 to include all matters which directly or indirectly pertain to an arbitration agreement. Applications made to Courts which are made before, during or after arbitral proceedings are made under Part-I of the Act and those covered by Section 42. But an essential ingredient of the Section is that an application under Part-I be made in a court, within the meaning as provided under section 2(e). 5. Having referred to that aspect, Mr. Mohanty, learned senior counsel has submitted that the application under section 11 has also to be included for this purpose and it can only be made to the courts defined under section 2(e) of the Arbitration and Conciliation Act. Mr. Mohanty has also taken us to Para-12 of the said judgment where the apex Court has observed that thus respectfully agree with the suggestion that such application has been made before the judicial authority which is not a court, as per the definintion. Similarly, a party who applies under Section 8 does not apply as dominus litus. Thus, an application under Section 8 is parasitical in nature and it has to be filed only before the judicial authority, before whom the proceeding Page 3 of 6 can be filed. The “judicial authority” may or may not be a Court. Court before which an action may be brought, may not be a Principal Civil Court of original jurisdiction or a High Court exercising the original jurisdiction. 6. Dilating further, the apex Court has observed as follows : 17. That the Chief Justice does not represent the High Court or Supreme Court as the case may be is also clear from Section 11(10): “The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub- section(5) or sub-section (6) to him.” The scheme referred to in this sub-section is a scheme by which the Chief Justice may provide for the procedure to be followed in cases dealt with by him under Section 11. This again shows that it is not the High Court or the Supreme Court rules that are to be followed but a separate set of rules made by the Chief Justice for the purposes of Section 11. Sub-section 12 of Section 11 reads as follows: 13 “(a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ‘‘Chief Justice'' in those sub-sections shall be construed as a reference to the ‘‘Chief Justice of India''. (b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.” 7. Mr. Mohanty, learned senior counsel has questioned the jurisdiction of the Chief Justice to pass an order of Page 4 of 6 reference, such as the impugned order dated 15.9.2022. On the basis of facts, special to this proceeding, Mr. Mohanty has submitted that a reference was made when an order was passed under Section 8 of the Act to appoint another retired Judge of this High Court. But we do not find any material to come to a definite conclusion that any other retired judge was appointed as the Arbitrator earlier. It appears from the order dated 30.9.2022 that due to sad demise of Justice D.P.Mohapatra, a former Judge of the Supreme Court of India, the Hon’ble Chief Justice appointed Mr. J.P.Das, former Judge of this Court as the sole Arbitrator, in place of Justice D.P.Mohapatra, to adjudicate the dispute between the parties. We have no confusion that the said order has been passed under section 11(6) of the Arbitration & Conciliation Act, 1990 and has not been passed by any Court, but by the Chief Justice. It has been categorically held that the Chief Justice is not a Court but a person designated by the Act. In State of West Bengal v. Associated Contractors (supra), the apex Court has clearly reiterated the law. 8. Having reiterated thus, we do not find any infirmity in the order, as challenged by the petitioner. Accordingly, we dismiss the writ petition. We have not examined the issue of jurisdiction of this Court in respect of the judicial review of the order passed by the Chief Justice, in exercise of his power under section 11(6) of the Act as we Page 5 of 6 do not find any merit in the challenge against the order dated 15.09.2016 passed in ARBP No. 5 of 2015 (Annexure-1 to the writ petition) the order dated 30.09.2022 (Annexure-2 to the writ petition) and the order dated 4.5.2023 passed in W.A. No. 670 of 2021 (Annexure-3 to the writ petition). No orders as to costs. Chief Justice (S.Talapatra) (M.S.Sahoo) dutta Judge Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 02-Oct-2023 13:06:18 Page 6 of 6