Gujarat High Court
Union Of India vs Pushkarraj Construction P Ltd on 24 April, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
C/FA/4969/2022 ORDER DATED: 24/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4969 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4969 of 2022
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UNION OF INDIA
Versus
PUSHKARRAJ CONSTRUCTION P LTD
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Appearance:
MRS KRISHNA G RAWAL(1315) for the Appellant(s) No. 1
MR ANSHIN DESAI, SR. ADVOCATE with MR DIGANT B KAKKAD(6523) for
the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/04/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. Heard learned advocate Mrs. Krishna G. Raval for the appellant - Union of India and learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr.Digant Kakkad for the respondent M/s Pushkarraj Construction Private Limtied.
2. By way of this appeal under section 37 of the Arbitration and Conciliation Act, 1996 (in short "the Act"), the appellant - Union of India challenges the order passed below Exh.1 in CMA No.20 of 2021 dated 18.7.2022, whereby the learned Additional District Judge, Porbandar dismissed the CMA on the ground of want of territorial jurisdiction.
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3. The brief facts of the case are that the appellant is Union of India and the opponent is the contractor. Union of India wanted to construct building for residential purpose for the personnel serving at Naval Base at Porbandar for Rs.104.96 crore and for that, an agreement had signed by both the parties and agreed to all the terms and conditions of the said agreement. The subject contract was to be completed on or before 19.2.2015. However, the work was completed on 26.12.2016 and for that a dispute arose between the parties. Thereafter, the matter was referred to the Sole Arbitrator appointed by the competent authority. After hearing both the parties, the Sole Arbitrator rejected the claim of the appellant without assigning any reason vide award dated 24.10.2018. Being aggrieved by the said award, the present appellant challenged the same before the Principal District and Sessions Judge, Porbandar by filing CMA No.20 of 2021. Learned Principal District and Sessions Judge, Porbandar has not entertained the application on the ground of territorial jurisdiction and has dismissed the same vide order dated 18.7.2022 and therefore, present first appeal.
4. Learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr.Digant Kakkad for the respondent raised preliminary objection with regard to maintainability of this appeal u/s 37 of the Act inter alia on the ground that section 37 of the Act does not provide for appeal against the order, whereby the court below has believed and held that the application u/s 34 of the Act is not maintainable for want of territorial Page 2 of 6 Downloaded on : Mon Apr 24 20:52:23 IST 2023 C/FA/4969/2022 ORDER DATED: 24/04/2023 jurisdiction and therefore, it is urged to dismiss the appeal as not maintainable. Learned Senior Counsel has relied upon decision of Delhi High Court in the case of Harmanprit Singh Sidhu Vs. Arcadia Shares and Stock Brokers Private Limited reported in 2016 SCC Online Del 5383.
4.1 Learned Senior Counsel would further submit that considering the contour of section 37 of the Act, it is clear that the impugned order does not fall within the provisions of law and therefore, it cannot be challenged by way of this appeal u/s 37 of the Act.
4.2 Making above submissions, learned Senior Advocate Mr. Anshin Desai has urged to dismiss this appeal.
5. Having heard learned Senior Counsel Mr. Anshin Desai on preliminary objection, at the outset, we may refer section 37 of the Act, which reads as under:-
37. Appealable orders.--
(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:--
(a) granting or refusing to grant any measure under section 9;
(b) setting aside or refusing to set aside an arbitral award under section 34.
(2) An appeal shall also lie to a Court from an order granting of the arbitral tribunal.--Page 3 of 6 Downloaded on : Mon Apr 24 20:52:23 IST 2023
C/FA/4969/2022 ORDER DATED: 24/04/2023
(a) accepting the plea referred in sub-section (2) or sub-section (3) of section 16; or
(b) granting or refusing to grant an interim measure under section 17.
(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
6. On perusal of section 37 of the Act, it is evident that an appeal can lie only from the orders specified in clause (a) (b) and (c). In other words, an appeal u/s 37 would only be maintainable as per the orders stated in clause (a) (b) and (c). An order refusing to refer the parties to the arbitration u/s 8 as stated in clause (a) or granting or refusing to grant any measure u/s 9 as stated in clause (b) or an order setting aside or refusing to set aside an arbitral award u/s 34 as stated in clause (c) are the appealable order and appeal against said orders u/s 37 is maintainable. Like wise, sub section (2) of section 37 also provides the provision for appeal. Clause (a) thereof refers to the order accepting plea referred in sub sections (2) and (3) of section 16 or clause (b) refers to granting or refusing to grant an interim measure under section 17 are the appealable orders. Except above and apart thereof, other orders are not appelable orders u/s 37 of the Act.
7. Insofar as the impugned order is concerned, it is not an order refusing to refer the parties to the arbitration or granting or refusing an interim measure or setting aside or refusing to Page 4 of 6 Downloaded on : Mon Apr 24 20:52:23 IST 2023 C/FA/4969/2022 ORDER DATED: 24/04/2023 set aside an arbitral award or an order accepting plea referred in sub sections (2) and (3) of section 16 or granting or refusing to grant an interim measure under section 17. By way of the impugned order, the learned court below simply without examining the merits and demerits held that the court at Porbandar has no territorial jurisdiction to try and decide the recourse made by way of section 34 to the arbitral award and upon such ground, the learned court below has dismissed the recourse made u/s 34 of the Act challenging the arbitral award.
8. Learned advocate Mrs. Krishna Raval appearing for the appellant Union of India is not in a position to point out that how the impugned orders falls within the contours of section 37 and makes the impugned order an appealable order u/s 37 of the Act.
9. In view of above and for the foregoing reasons, we uphold the preliminary objection raised by learned Senior Advocate Mr. Anshin Desai for and on behalf of the respondent company and we find that the present first appeal is not maintainable u/s 37 of the Act. Consequently, we dismiss this appeal as not maintainable. Notice discharged.
10. Needless to say that we have not examined correctness and merits of the case and therefore, it would be open for the appellant Union of India to agitate its grievance before appropriate forum known to the law and in that event, the Page 5 of 6 Downloaded on : Mon Apr 24 20:52:23 IST 2023 C/FA/4969/2022 ORDER DATED: 24/04/2023 concerned court or forum would decide the issue on its own merits.
11. Since the first appeal is dismissed on the ground of having been not maintainable, CA does not survive and stands disposed of accordingly.
(ASHUTOSH SHASTRI, J) (J. C. DOSHI,J) SHEKHAR P. BARVE Page 6 of 6 Downloaded on : Mon Apr 24 20:52:23 IST 2023