Calcutta High Court (Appellete Side)
Ranjita Apartment Owners'Association ... vs Sri Prabir Kumar Chakraborty on 14 February, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J (2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 1753 of 2009 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Ranjita Apartment Owners'Association & ors.
Versus Sri Prabir Kumar Chakraborty.
For the Petitioners: Mr. S. P. Roychowdhury,
Mr. Pradip Kr. Dutta,
Mr. Aniruddha Roy,
Mr. Jhunjhunwala.
For opposite party: Mr. S. Chowdhury,
Mr. S. Dutta.
Heard On: 02.02.2011.
Judgement On: February 14, 2011.
Prasenjit Mandal, J.: This application is directed against the order no.12 dated May 11, 2009 passed by the learned Additional District Judge, Sixteenth Court, Alipore in Misc. Case No.1126 of 2008 thereby rejecting an application under Section 42 of the Arbitration and Conciliation Act, 1996.
2A dispute arose between the parties over certain points of an agreement dated January 30, 2002, which lays down a clause for settlement of the dispute by appointment of an arbitrator. Accordingly, an arbitrator was appointed by the Hon'ble Justice, Calcutta High Court. The arbitrator submitted an award. The opposite party filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 before the learned District Judge, South 24 Parganas at Alipore. In that application, the petitioners filed an application under Section 42 of the said Act of 1996 contending, inter alia, that the application for setting aside the award is not maintainable before the learned District Judge, South 24 Parganas. That application was dismissed by the impugned order. Being aggrieved, this application has been preferred.
Mr. S. P. Roychowdhury, learned senior Advocate, appearing on behalf of the petitioners, submits that according to the scheme of the Act when there is an arbitration clause in an agreement, the dispute between the parties shall be settled through the arbitration proceedings and for that reason at the initiation of one of the parties, the Hon'ble Chief Justice of this Hon'ble High Court appointed an arbitrator to solve the dispute. Then the arbitrator submitted his award. That award was challenged by the opposite party by way of filing an application under Section 34 of the said Act of 1996. According to the provisions of Section 42 3 of the said Act of 1996, such award can be challenged only before the Hon'ble High Court and not to the Court of the learned District Judge at Alipore. Thus, he contends that since initial application was initiated before this Hon'ble Court, the subsequent applications are to be filed before this Hon'ble Court and not to any other forum. In support of his contention, Mr. Roychowdhyry has referred to the decision of (2008)3 C.L.T. Page 1 and 2003 (3) ARB.L.R. 530 (Delhi), thus he submits that the learned Additional District Judge has committed a wrong and so the impugned order should be set aside.
On the other hand, Mr. Chowdhury, learned Advocate, appearing on behalf of the opposite party, submits that according to the definition of the word "Court" as laid down in Section 2(e), "Court" means the principal civil court of original jurisdiction in a District. Since the cause of action arose within the jurisdiction of Tollygungee Police Station, which is certainly within the territorial jurisdiction of the learned District Judge, South 24 Parganas, the application for setting aside the award must be filed before the learned District Judge, South 24 Parganas at Alipore. Such a course has been resorted to and so the learned Additional District Judge was quite justified in rejecting the application under Section 42 of the said Act of 1996. In support of his contention, Mr. Chowdhury also refers to the decision of (2008)2 WBLR (Cal) 34 and thus, he submits that according to the 4 decision of the Single Bench of this Hon'ble Court, the application before the learned District Judge was quite maintainable and so, the learned Additional District Judge was quite justified in rejecting the application under Section 34 of the said Act of 1996.
Thus, the question that arises for decision is whether the learned Additional District Judge is justified in dismissing the application under Section 42 of the said Act of 1996.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the matter in dispute between the parties went to an arbitrator, namely, R. N. Chakraborty, appointed by the Hon'ble Chief Justice of the High Court at Calcutta under Section 11(6) of the Arbitration and Conciliation Act, 1996. The arbitrator proceeded with the matter and thereafter he submitted an award. Being aggrieved, an application for setting aside that award was preferred before the learned District Judge, South 24 Parganas at Alipore.
In order to appreciate the proposition of law, if the learned District Judge has any authority to deal with the matter, it is convenient to read the Section 42 of the said Act of 1996. Section 42 is quoted below:-
"42. Jurisdiction.- Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any 5 application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."
No doubt, the application under Section 11(6) of the said Act of 1996 was dealt with by the Hon'ble Chief Justice of the High Court, Calcutta and he passed the appropriate orders appointing an arbitrator. Therefore, the first application under Section 11(6) of the said Act under Part I was dealt with by this Hon'ble Court. Section 42 is also included within the Part I of the said Act. Therefore, whenever any subsequent application relating to the arbitration matter is to be moved, it must be done before the same Court where the previously one was lodged, that is, before the Hon'ble High Court, Calcutta. Section 42 of the said Act is very much explicit in this regard.
While referring to the decision of (2008)3 C.L.T. Page 1, Mr. Roychowdhury has drawn my attention that according to the decision of the Division Bench when the earlier application under Section 11(6) of the said Act of 1996 was considered and allowed by this Hon'ble Court, any other application as contemplated under Section 42 should lie to this Court and not any other Court. Similarly, the decision of 2003 (3) ARB.L.R. 530 (Delhi) also lays down that the application under Section 34 for setting aside 6 an award was not maintainable before any other Court but the Court which dealt with the application under Section 11(6) for appointment of an arbitrator. These two decisions are very much in consonance with the present one. Therefore, these two decisions are very much applicable in the instant case and the decision of the Division Bench referred to above should be followed in the instant case.
On the other hand, Mr. Chowdhury appearing on behalf of the opposite party, referred to the decision of (2008)2 WBLR (Cal) 34, wherein the learned Single Judge has observed that though the Section 11 is a complete one with regard to appointment of an arbitrator, the function is discharged as soon as the matter is referred to an arbitrator naming an arbitrator or the arbitral tribunal. In that case, an execution application was dismissed holding the same not maintainable. That decision came out on March 16, 2008 and the Division Bench decision referred to above was delivered on April 23, 2008. In case of any dispute or divergence of opinion between a Single Bench and the Division Bench, the decision of the Division Bench should be followed. In the instant case, the decision of (2008)3 C.L.T. Page 1 is very much applicable in the instant situation as observed above. Therefore, I have no other alternative but to follow the said decision. I am of the view that the learned District Judge, South 24 Parganas at Alipore has no jurisdiction to decide an application under Section 7 34 of the said Act of 1996 under the above facts and circumstances.
So, the learned Additional District Judge has committed an error in dismissing an application under Section 42 of the Act of 1996. He has failed to exercise the jurisdiction vested in him. Therefore, the impugned order calls for interference.
Accordingly, the application under Article 227 of the Constitution of India is allowed. The impugned order is hereby set aside. The application dated January 5, 2009 under Section 42 of the Arbitration and Conciliation Act, 1996 filed by the petitioners stands allowed.
As a result, the misc. case being Misc. Case No.1126 of 2008 pending before the learned Additional District Judge, Sixteenth Court, South 24 Parganas at Alipore stands dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.
(Prasenjit Mandal, J.)