2009 Supreme(SC) 1126

2009(4) Supreme 425
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Dr. B.S. Chauhan, JJ.
Hindustan Copper Limited — Appellant
versus
M/s. Nicco Corporation Ltd. — Respondents
Civil Appeal No. 5630 of 2008
Decided on : 20-05-2009

IMPORTANT POINT
The expression ‘Court’ is defined under provision of Section 2(1) (e) of Act, meaning principal civil Court of original jurisdiction in a district, and includes High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration.

Headnote:Arbitration and Conciliation Act, 1996 – Section 11(6) – Application filed by respondent for appointment of an Arbitrator – Appointment of Justice P.K. Sarkar, a retired Judge of Patna High Court to adjudicate upon and decide disputes between the parties – On Award passed by arbitrator, appellant filed a petition under Section 34 of Act, 1996, challenging the Award – The Registry filed an objection regarding the maintainability of the aforesaid petition under Section 34 of the Act on plea that against aforesaid Arbitration Award, a petition under Section 34 of the Act should have been filed before appropriate court as defined under Section 2(e) – Single Judge agreeing with said objection held that said petition under Section 34 of Act, 1996, was not maintainable – Appeal – Dismissed on ground that the aforesaid application under Section 34 or appeal under section 34 or appeal under Section 37 of Act, 1996, was not maintainable before High Court – Chief Justice held that same ought to have been filed before an appropriate court as envisaged under the provision of Act, 1996 – Appeal thereagainst on plea that since said appeal which the appellant had filed was an appeal under Section 37 of Act, 1996, it should have been entertained and decided by a Division Bench, since the Order of the learned Single Judge was under challenge – However said contention found to be prima facie untenable in view of and in 1ight of the provisions of Act, 1996 – The said application under Section 34, is to be filed before a court which is empowered and has jurisdiction to entertain and decide such objection filed under Section 34 of the Act – The expression ‘Court’ is defined under provision of Section 2(1) (e) of Act, meaning principal civil Court of original jurisdiction in a district, and includes High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration – Section 37 of the Act on which emphasis was given by counsel for the appellant applies only when the pre-conditions mentioned therein are satisfied–Contention of appellant that since Single Judge refused to set aside arbitration award, therefore an appeal could be preferred by appellant as envisaged under Section 37(1) (b) of Act, 1996 also held untenable – This was because petition filed under Section 34 of Act, 1996, was dismissed on ground of mintainability of and not on the ground by refusing to set aside the arbitration award–Matter remitted and petition filed under Section 34 of Act, 1996, filed by the appellant to the civil court competent to hear and decide the same as envisaged under Section 2(1)(e) of the Act – Appeal disposed of. (Paras 6 to 8)

       Facts of the Case :

        1. Application was filed by respondent herein in the instant case under Section 11(6) of Act, 1996, for appointment of an Arbitrator to decide disputes arising between parties in terms of arbi tration agreement-Appointment of Justice P.K. Sarkar, a retired Judge of Patna High Court to adjudicate upon and decide disputes between the parties. On Award passed by arbitrator , appellant filed a petition under Section 34 of Act, 1996, challenging the Award dated 28.9.2006 passed by the Sole Arbitrator. The Registry filed an objection regarding maintainability of said petition under Section 34 of Act on plea that against aforesaid Arbitration Award, a petition under Section 34 of the Act should have been filed before appropriate court as defined under Section 2(e) of the Arbitration and Conciliation Act, 1996. Single Judge agreeing with said objection held that said petition under Section 34 of Act, 1996, was notmaintainable.Appeal thereagainstwasdismissed on ground that the aforesaid application under Section 34 or appeal under section 34 or appeal under Section 37 of the Arbitration and Conciliation Act, 1996, was not maintainable before the High Court. Chief Justice held that same ought to have been filed before an appropriate court as envisaged under the provision of the Arbitration and Conciliation Act, 1996

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Present appeal has been filed on plea that since said 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. However said contention wasfound to be prima facie untenable in view of and in 1ight of the provisions of Act, 1996. The said application under Section 34, is to be filed before a court which is empowered and has jurisdiction to entertain and decide such objection filed under Section 34 of the Act. The expression ‘Court’ is defined under provision of Section 2(1) (e) of Act, meaning principal civil Court of original jurisdiction in a district, and includes High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration. Section 37 of the Act on which emphasis was given by counsel for the appellant applies only when the pre-conditions .mentioned therein are satisfied. Contention of appellant that since Single Judge refused to set aside arbitration award, therefore an appeal could be preferred by appellant as envisaged under Section 37(1) (b) of Act, 1996 also held untenable. This was because petition filed under Section 34 of Act, 1996, was dismissed on ground of mintainability of and not on the ground by refusing to set aside the arbitration award–Matter remitted and petition filed under Section 34 of Act, 1996, filed by the appellant to the civil court competent to hear and decide the same as envisaged under Section 2(1)(e) of the Act. Appeal was disposed of

       Result : Appeal disposed of.