REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL APPEAL NO.5630 OF 2008

HINDUSTAN COPPER LIMITED ...APPELLANT.

VERSUS

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

J U D G M E N T

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.