IMPORTANT POINT
Setting aside arbitral award – Merely mentioning a wrong heading of provision on the application would not defeat cause of justice – Contents of application are required to be seen and not the provision mentioned on it.

JUDGMENT

Sanjeev Prakash Sharma, J.—By way of this Special Appeal (Civil), preferred under Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 (for brevity, “the Act of 1996”) read with Section 13(1A) of the Commercial Court Act, 2015, (for short, “the Act of 2015”), the appellant has challenged the order passed by the learned Single Judge dated 02.03.2022 whereby S.B. Arbitration Application No.117/2018 preferred by it under Section 34 of the Act of 1996 read with Section 10(1) of the Act of 2015 was dismissed by holding that there is no application under Section 34 of the Act of 1996 before him and the application moved under Section 10(1) of the Act of 2015 was not maintainable.

I. Factual Aspects:

2. The appellant is a company incorporated under the laws of Taiwan engaged in the business of civil construction, building construction and related works in various countries including India. On arising of a dispute between the appellant and the respondent Jaipur Metro Rail Corporation (for short, “JMRC”), arbitration proceedings were taken up by the Arbitral Tribunal comprising of Hon’ble Mr. Justice Vikramajit Sen (Retd.), Hon’ble Mr. Justice Mukul Mudgal (Retd.) and Mr. Pradeep K. Deb, IAS (Retd.). The Arbitral Tribunal by 2:1 majority turned down the claim of the appellant vide its Award dated 20.12.2017.

3. The appellant challenged the Award vide their petition under Section 34 of the Act of 1996 on 16.03.2018 before the Rajasthan State Commercial Court (District Level), Jaipur (hereinafter referred to as “the Commercial Court”). The respondent entered appearance and raised a preliminary objection by filing an application, primarily on the ground of jurisdiction of the Commercial Court as the dispute was covered under the international commercial arbitration. The Commercial Court, after hearing arguments of both the sides, vide order dated 22.11.2018 proceeded to hold that as per Section 10(1) of the Act of 2015, the application or appeal would lie before the High Court where there is an international commercial dispute and therefore, the petition filed by the appellant was returned to be filed before the competent court of jurisdiction in terms of Order 7 Rule 10 CPC.

4. Having received the application under Section 34 of the Act of 1996 filed in original on 06.12.2018, the appellant filed it before the Registry of this court on 06.12.2018 itself. However, the Registry refused to accept the petition in its existing form stating that the petition under Section 34 of the Act of 1996 cannot be directly filed. The appellant thereafter filed the application under Section 10(1) of the Act of 2015 in order to remove the defects pointed out by the Registry. The said application was listed before the Division Bench of this court and the petition was registered under Section 34 of the Act of 1996, numbered as D.B. Arbitration Application No.117/2018.

5. Again the respondent raised a preliminary issue regarding maintainability of the petition under Section 34 of the Act of 1996 in the given form with following objections:

“a) No application under Section 34 of the Act has been filed before the High Court;

b) Order passed by Commercial Court is incorrect as the application of Appellant under Section 34 should have been rejected and not transferred under Order 7 Rule 10 of CPC.

c) Under sub-clause (a) of Rule 4 of the Rajasthan Arbitration Rules, 2003 a signed application has to be filed, verification of which is mandatory. The Respondent alleged that as per Rule 8, if the requirement is not fulfilled, application of Appellant be rejected without affording opportunity of hearing.

d) As per Rule 125 of the Rajasthan High Court Rules, every application must carry a heading depicting the name of the High Court. However, the application under Section 34 of the Act, which was filed before the Commercial Court, has been annexed with the application under Section 10(1) of the Commercial Courts Act. Thus, the presentation it