2009(9) SCR 579 HINDUSTAN COPPER LIMITED

v. M/S. NICCO CORPORATION LTD.

(Civil Appeal No. 5630 of 2008) MAY 20, 2009

[DR. MUKUNDAKAM SHARMA AND DR. B.S. CHAUHAN, JJ.]

The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. 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.

2. We have heard learned counsel appearing for the parties.

3. 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  

and held that  the aforesaid petition filed by the appellant  under  

Section  34  of  the  Arbitration  and  Conciliation  Act,  1996,  is  not  

maintainable.  

4.  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  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.

5. 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.

6. We are unable to accept the aforesaid contention which is  

found to be prima facie untenable in view of and in 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 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.

7.  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.

8. The orders of the learned Single Judge as also of the then  

Chief  Justice  of  Jharkhand  High  Court  stand  modified  to  the  

aforesaid extent.

9. 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.  

10. The appeal is disposed of accordingly.

11. Copy of this order be given dasti to the parties.