Calcutta High Court
Mrs. Hosenara Begum vs Sk. Asraf Ali & Ors on 27 February, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
AP No.1048 of 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
MRS. HOSENARA BEGUM
-Versus-
SK. ASRAF ALI & ORS.
Appearance:
Mr. Anubhav Sinha, Adv.
...for the petitioner.
Mr. Tapas Kumar Dey, Adv.
Mr. Nirupam Sarkar, Adv.
...for the respondent.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE Date : February 27, 2014.
The Court : Two grounds have been urged by the respondent in opposing this petition under Section 9 of the Arbitration and Conciliation Act, 1996: first, that this Court does not have the jurisdiction to entertain the petition in view of a previous petition under Section 9 of the 1996 Act having been carried by the petitioner to the City Civil Court; and, that the properties over which the petitioner has obtained an order do not belong to the partnership firm that the petitioner claims to be interested in.
In view of Section 2(1)(e) of the 1996 Act, not all civil courts of original civil jurisdiction are entitled to entertain petitions under Part-I of the 1996 Act. Only a principal civil Court of original jurisdiction in a district is entitled to exercise jurisdiction under the 1996 Act and a principal civil Court of 2 original jurisdiction in a district would be the High Court if it exercises ordinary original civil jurisdiction. As per the relevant statute as at the time that the previous Section 9 petition was filed by this petitioner, the City Court was entitled to entertain matters which were below the floor-limit set for the High Court to exercise its ordinary original civil jurisdiction. However, it does not appear that the value of a claim or a matter can be of any relevance in a petition filed under Part-I of the 1996 Act in view of the definition of "Court" in such Act. Not only has the word "principal" been used in the opening limb of the definition, but it has been emphasised in the last limb of the definition that the Court authorised to receive matters covered by Part-I of the 1996 Act would not include any civil Court or a Court inferior to the principal civil Court identified in the opening part of the definition.
In such circumstances, it does not appear that the City Civil Court at Calcutta has any jurisdiction to receive a petition under the Arbitration and Conciliation Act, 1996 as long as the High Court at Calcutta exercises ordinary original civil jurisdiction.
In the light of the above, the first ground urged by the respondents is found to be of no merit.
The second ground raises disputed questions that cannot be conveniently adjudicated on affidavit evidence. According to the respondents, not only are some of the goods that are described at paragraph 18 of the petition not a part of the property of the partnership firm in which the petitioner claims interest, some of them belong to the respondents or firms subsequently begun by the respondents. The petitioner, on the other hand, suggests that the assets originally acquired by the firm in which the petitioner has claimed interest may 3 have been diverted in the names of the respondents or firms started by the respondents with a view to prejudice the petitioner. The rival claims require protracted adjudication.
In such circumstances, A.P.No.1048 of 2013 is disposed of by confirming the subsisting order of September 17, 2013, but by giving liberty to the parties to seek a variation of the order before the arbitrator. The arbitrator should not feel constrained to vary the order and allow the respondents to use any of the assets described at paragraph 18 of the petition in the event cogent grounds are made out therefor.
There will be no order as to costs.
Certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) A/s.