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Supreme Court of India
A.K. PATNAIK & JAGDISH SINGH KHEHAR, JJ.
Executive Engineer, Road Development Division No.III, Panvel & Another – Appellants
Versus
Atlanta Limited – Respondent
Civil Appeal No. 673 of 2014 (Arising out of SLP (C) No.18980 of 2013)
Decided On : 16-01-2014
(b) Arbitration and Conciliation Act, 1996 - Section 34 and section 16, Code of Civil procedure, 1908 - Section 16 applies to cases involving immovable property - Has no application to Arbitration Act. (Para 19)
(c) Arbitration and Conciliation Act, 1996 - Section 34 - Determination of court - Number of cases filed and time taken by High Court and District court - May be relevant factor but not legal consideration. (Para 21)
(d) Arbitration and Conciliation Act, 1996 - Section 42 - Disputes arising out of the same arbitration agreement, arbitral proceeding or arbitral award, would not be adjudicated upon by more than one court, even though jurisdiction to raise such disputes may legitimately lie before two or more courts - Court wherein the first application is filed shall alone have jurisdiction to adjudicate upon the dispute(s), which are filed later in point of time - However section 42 will not be helpful in case where cases are filed before two courts on the same date, as instantly. (Paras 23 and 24)
(e) Arbitration and Conciliation Act, 1996 - Section 2(1)(e) - Court - High Court exercising "ordinary original civil jurisdiction", and the "principal civil court of original jurisdiction" in a district - Between the High Court in exercise of its "ordinary original civil jurisdiction" and the "principal civil court of original jurisdiction" in the District the choice is to be exercised in favour of the High Court - It makes no difference if the "principal civil court of original jurisdiction" is in the same district over which the High Court exercises original jurisdiction, or some other district. (Para 25)
Facts of the case:
Atlanta Ltd. was awarded road construction work. Some disputes arose between the Atlanta Ltd and the State of Maharashtra. In terms of the arbitral agreement contained in the contract the dispute was referred to arbitration. The Arbitration Tribunal by its award allowed almost all claims of Atlanta Ltd.
The State of Maharashtra filed two Miscellaneous Applications before the civil court challenging the award. Atlanta Ltd also filed an arbitration application before the High Court contending that the Tribunal did not consider its claim for further compensation. It also filed a Miscellaneous application for transfer the miscellaneous applications pending before the civil court to the High Court to be heard along with the arbitration application filed by it. This application was allowed.
Finding of the Court:
Between the High Court in exercise of its "ordinary original civil jurisdiction" and the "principal civil court of original jurisdiction" in the District the choice is to be exercised in favour of the High Court.
Result: Appeal disposed of upholding the impugned judgment.
Judgment :-
JagdishSingh Khehar, J.
1. State of Maharashtra, through its Public Works Department, awarded a contract dated 12.7.2000 to the respondent-Atlanta Limited (a public limited company) for the construction of the Mumbra byepass. On 11.5.2005, a supplementary agreement for additional work was executed between the parties. It would be relevant to mention, that the Mumbra byepass falls on National highway no. 4. The construction envisaged in the contract awarded to the respondent-Atlanta Limited was, from kilometer 133/800 to kilometer 138/200. The contract under reference envisaged, settlement of disputes between the parties, through arbitration. Atlanta Limited raised some disputes through a communication dated 1.10.2009. It also invoked the arbitration clause for resolution of the said disputes. The State of Maharashtra as also Atlanta Limited nominated their respective arbitrators, who in turn, appointed the presiding arbitrator. On the culmination of proceedings before the arbitral tribunal, an award was rendered on 12.5.2012. Almost all the claims raised by Atlanta Limited were granted. In sum and substance, Atlanta Limited was awarded a sum of Rs.58,59,31,595/- along with the contracted rate of interest (of 20 per cent per annum), with effect from 1.10.2009. Atlanta Limited was also awarded a sum of Rs.41,00,000/- towards costs. All the counter claims raised by the State of Maharashtra, before the arbitral tribunal, were simultaneously rejected.
2. On 7.8.2012, the State of Maharashtra moved Miscellaneous Application no. 229 of 2012 and Miscellaneous Application no. 230 of 2012 under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Arbitration Act’) before the District Judge, Thane. The State of Maharashtra through the aforesaid Miscellaneous Applications sought quashing and setting aside of the arbitral award dated 12.5.2012.
3. On the same day, i.e., 7.8.2012, Atlanta Limited filed Arbitration Petition no.1158 of 2012 before the High Court of Judicature at Bombay (hereinafter referred to as the ‘High Court’), for the setting aside of some of the directions issued by the arbitral tribunal (in its award dated 12.5.2012). Atlanta Limited also claimed further compensation, which according to the respondent, had wrongfully not been considered by the arbitral tribunal.
4. A perusal of the averments made in the foregoing two paragraphs reveal, that on the same day i.e., on 7.8.2012, the State of Maharashtra as also Atlanta Limited questioned the award of the arbitral tribunal dated 12.5.2012. Whilst the State of Maharashtra questioned the same before the District Judge, Thane; Atlanta Limited raised its challenge before the High Court. Since the same award dated 12.5.2012 was subject matter of challenge before two different courts, Atlanta Limited preferred Miscellaneous Civil Application no. 162 of 2012 under Section 24 of the Code of Civil Procedure, 1908 praying for transfer of Miscellaneous Application no. 229 of 2012, as also, Miscellaneous Application No.230 of 2012 (both filed by the State of Maharashtra) before the District Court, Thane, to the original side of the High Court, for being heard along with Arbitration Petition No.1158 of 2012. The aforestated Miscellaneous Civil Application No.162 of 2012 was allowed by the High Court on 15.3.2013. The operative part of the order passed by the High Court is being extracted hereunder:
“32. In the light of the above conclusion, the argument that this Court can only direct consolidation of both Petitions without passing any order with regard to their transfer, need not be considered in this case. Apart therefrom, once I find that the Respondents have no objection to consolidation of the proceedings so as to avoid conflicting decisions or simultaneous trial/hearing, then, all the more, the powers to transfer needs to be exercised in this case. It is undisputed that the parties are common to both matters. In both matters the same Awar
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