Hindustan Copper Limited vs M/S Nicco Corporation Ltd

HINDUSTAN COPPER LIMITED ...APPELLANT.

VERSUS

M/S. NICCO CORPORATION LTD. ...RESPONDENT.

JUDGMENT

Dr. Mukundakam Sharma,J

This appeal is directed against the Judgment and Order passed by the learned

Chief Justice of the Jharkhand High Court taking up the appeal and disposing of the said

appeal by his Order dated 4.1.2008. The appellant herein filed a petition under Section 34 of

the Arbitration and Conciliation Act, 1996, challenging the legality of the Award dated

28.9.2006 passed by the Sole Arbitrator with a prayer to set aside the same. The learned

Single Judge before whom the petition was filed held the same to be not maintainable. On

appeal filed the Chief Justice held that such an appeal is also not maintainable.

We have heard learned counsel appearing for the parties.

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It is disclosed from the records that an application was filed by the respondent

herein before the Jharkhand High Court at Ranchi under Section 11(6) of the Arbitration and Conciliation Act, 1996, praying for appointment of an Arbitrator to adjudicate upon and

decide the disputes arising between the parties in terms of the arbitration agreement. The

Jharkhand High Court entertained the said application and appointed Justice P.K. Sarkar,

who is a retired Judge of the Patna High Court to adjudicate upon and decide the disputes

between the parties. Pursuant to the said order, the learned Arbitrator entered into the

Reference and passed the Award on 28.9.2006. After the Award was passed, the appellant

herein filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996,

challenging the Award dated 28.9.2006 passed by the Sole Arbitrator. The Registry filed an

objection regarding the maintainability of the aforesaid petition under Section 34 of the Act.

According to the Registry, against the aforesaid Arbitration Award, a petition under Section

34 of the Act should have been filed before the appropriate court as defined under Section

2(e) of the Arbitration and Conciliation Act, 1996. The learned Single Judge considered the

aforesaid objection raised by the Registry of the High Court and agreed with the said

objection

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and held that the aforesaid petition filed by the appellant under Section 34 of the Arbitration

and Conciliation Act, 1996, is not maintainable.

Being aggrieved by the said order, the appellant filed an appeal invoking the

provision of Section 37 of the Act. The said appeal was entertained by the then Chief Justice

of the High Court of Jharkhand. After hearing the then Chief Justice dismissed the said

appeal on the 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, is not maintainable before the High Court. In other words, according to the Chief Justice the same

should have been filed before an appropriate court as envisaged under the provision of the

Arbitration and Conciliation Act, 1996.

Counsel appearing for the appellant has submitted before us that since the

aforesaid 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.

We are unable to accept the aforesaid contention which is found to be prima

facie untenable in view of and in

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the light of the provisions of the Arbitration and Conciliation 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 the provision of Section 2(1)(e) of the Act, meaning 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. 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. The submission of the learned counsel appearing for the appellant is that since the

learned Single Judge refused to set aside the arbitration award, therefore an appeal could be

preferred by the appellant as envisaged under Section 37 (1)(b) of the Arbitration and

Conciliation Act, 1996. We are again unable to persuade ourselves to accept the aforesaid contention of the counsel appearing for the appellant for petition filed under Section 34 of the

Arbitration and Conciliation Act, 1996, was dismissed on the ground of maintainability of

the petition and not on the ground by refusing to set aside the arbitration

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award. Being faced with the aforesaid situation, the counsel appearing for the appellant

states that he would not like to delay the proceeding and rather would desire that the

proceedings are expedited. In terms of his statement and prayer and also in view of the

submission of the counsel appearing for the respondent who has submitted that the matter

requires urgent attention of the court, we remit the matter and the petition filed under Section

34 of the Arbitration and Conciliation 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.

The petition under Section 34 of the Act filed by the appellant shall now be

listed before the District Judge, East Singhbhum, where the parties shall appear on 29th of

May, 2009, when the District Judge shall allot the petition under Section 34 to an appropriate

court in terms of the provision of Section 2(1)(e) of the Act. We also feel that the matter is

pending for a very long period and shuttling from one court to other court. Therefore, the

court to which the matter is entrusted to by the District Judge shall make all endeavor to

dispose of the same as expeditiously as possible preferably within a period of six months

from the date of receiving the records.

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The orders of the learned Single Judge as also of the then Chief Justice of

Jharkhand High Court stand modified to the aforesaid extent.

We are informed that the petition under Section 34 of the Arbitration and

Conciliation Act, 1996, is now lying in the Registry of the High Court of Jharkhand. The

same shall be transmitted immediately to the District Judge in terms of this order.

The appeal is disposed of accordingly.

Copy of this order be given dasti to the parties.

.....................J (Dr. MUKUNDAKAM SHARMA)

.....................J (Dr. B.S. CHAUHAN) NEW DELHI;

MAY 20, 2009.