Madhya Pradesh High Court
Anil Kumar Tripathi Through Its ... vs Mahaprabandhak Doorsanchar Nigam Ltd. ... on 31 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:27737
1 WP-16017-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
WRIT PETITION No. 16017 of 2023
ANIL KUMAR TRIPATHI THROUGH ITS PROPRIETOR SHRI GIRISH
CHANDRA DUBEY
Versus
MAHAPRABANDHAK DOORSANCHAR NIGAM LTD. (BSNL)
Appearance:
Shri Akarsh Chaturvedi - Advocate for the petitioner.
Shri Rajendra Bhargava - Advocate for respondent.
Reserved on : 27/10/2025
Delivered on : 31/10/2025
ORDER
With the consent of parties, the matter is heard finally. The instant writ petition filed under Article 226 & 227 of the Constitution of India challenges the order dated 28.06.2023 passed by the Judge, Commercial Court and Commercial Appellate Court, Gwalior (M.P.) in MJC AV 42/2016, whereby the learned Commercial Court, in terms of Section 34 (4) of the Arbitration and Conciliation Act, 1996, and the order dated 11.09.2019 passed by the Division Bench of this Court in Arbitration Appeal No.3/2016 has adjourned the proceedings under Section 34 of the Act of 1996 for a period of four months in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings and thereafter take such action to eliminate the grounds for Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 2 WP-16017-2023 setting aside arbitral award and pass appropriate order.
2. Brief facts leading to filing of the instant writ petition are as under:
2.1Vide agreement dated 24.01.2003, the petitioner was assigned the work of laying down underground Optical Fiber Cable for 10.27 Kms in Gwalior by the respondent.
2.2During the course of execution of the contract work, a dispute arose between the parties and the same was referred to the sole arbitrator who pass an arbitral award dated 09.05.2011 in favour of the petitioner awarding a sum of Rs.25,31,421/- along with interest and Rs.10,000/- as cost in favour of the petitioner.
2.3The said arbitral award was challenged by the respondents in proceedings under Section 34 of the Act of 1996 before the Additional District Judge, Gwalior, which was dismissed vide order dated 30.11.2011, thereby affirming the arbitral award dated 09.05.2011.
2.4The order dated 30.11.2011 passed by the Additional District Judge, Gwalior was thereafter challenged by the respondent in an arbitration appeal under Section 37 of the Arbitration and Conciliation Act, 1996, before this Court bearing Arbitration Appeal No.1/2012, which came to be allowed by the Division Bench of this Court vide order dated 22.04.2016 and the matter was remitted to the Additional District Judge, Gwalior to decide the application filed by the respondent under Section 34 of the Act of 1996, challenging the arbitral award afresh and pass a speaking order thereon.Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 3 WP-16017-2023 2.5Pursuant to the order of remand by this Court, the Additional District Judge, Gwalior considered the application under Section 34 of the Act of 1996 filed by the respondent afresh and passed an order dated 18.10.2016, thereby while setting aside the arbitral award dated 09.05.2011, the matter was remanded to the sole arbitrator for passing an award afresh after taking into consideration the documents filed before the Additional District Judge on 08.07.2016 and after affording opportunity of hearing to both the parties.
2.6The aforesaid order dated 18.10.2016 passed by the Additional District Judge, Gwalior was thereafter challenged by the petitioner before the Division Bench of this Court in Arbitration Appeal No.3/2016 on the ground that in view of the law laid down by the Apex Court in the case of Kinnari Mullick and Another Vs. Ghanshyam Das Damani 2018 (11) SCC 328, it was not open for the Court hearing an application under Section 34 of the Act of 1996 to set aside the arbitral award and remand the matter to the arbitrator for decision afresh. The Arbitration Appeal No.3/2016 was heard and partly allowed by the Division Bench of this Court vide order dated 11.02.2019, wherein the order dated 18.10.2016 passed by the Additional District Judge was set aside, the proceedings under Section 34 of the Act of 1996, before the Additional District Judge was restored with a further direction to exercise the jurisdiction/discretion conferred under Section 34(4) of the Act of 1996 and adjourned the proceedings for a period of time determined by it in order to give arbitral tribunal an opportunity to resume the arbitral Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 4 WP-16017-2023 proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the ground for setting aside the arbitral award.
2.7After passing of the order dated 11.09.2019, learned Court below (Commercial Court and Commercial Appellate Court, Gwalior) took up the matter and in compliance of the order dated 11.02.2019 passed by this Court in Arbitration Appeal No.3/2016 passed the order dated 28.06.2023, whereby the learned Commercial Court, in terms of Section 34 (4) of the Arbitration and Conciliation Act, 1996, and the order dated 11.09.2019 passed by the Division Bench of this Court in Arbitration Appeal No.3/2016 has adjourned the proceedings under Section 34 of the Act of 1996 for a period of four months in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings and thereafter take an appropriate action. It is this order which is under challenge in the instant writ petition.
3. Learned counsel appearing for the petitioner submits that vide impugned order dated 28.06.2023, the learned Commercial Court by again remanding the matter to the arbitrator had in fact passed a similar order dated 08.10.2016, which was passed earlier in the proceedings and which was set aside by the Division Bench of this Court vide order dated 11.02.2019 passed in Arbitration Appeal No.3/2016.
4. Counsel appearing for the petitioner further argued that by remanding the matter to the arbitrator, learned Commercial Court had acted contrary to the judgment of the Hon'ble Supreme Court in the case of I-Pay Clearing Services Pvt. Ltd. Vs. ICICI Bank Ltd. 2022 (3) SCC Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 5 WP-16017-2023 121, and the impugned order passed by the learned Commercial Court beyond the scope of Section 34(4) of the Act of 1996. The learned Commercial Court could not have remanded the matter to the arbitral tribunal to call for findings on the issue. Accordingly, learned counsel prays for interference in the matter.
5. On the other hand, learned counsel appearing for the respondent by referring to the averments made in the application for dismissal of the writ petition filed on behalf of the respondent, submitted that the perusal of the order impugned in the instant writ petition would itself reveal that the learned Commercial Court had simply complied with the directions issued by the Division Bench of this Court vide order dated 11.02.2019 passed in Arbitration Appeal No.3/2016 filed by the petitioner himself. The impugned order dated 28.06.2023 does not remand the matter to the arbitral tribunal, but simply adjourns the proceedings for a period of four months as directed by the Division Bench of this Court vide order dated 11.02.2019 (Annexure-P/7).
6. Counsel for the respondent further submits that the petitioner has not pleaded any legal ground for interference in the impugned order dated 28.06.2023, which is nothing but the compliance of the orders passed by the High Court. The petitioner cannot now be permitted to contend contrary to what has been directed by the Division Bench of this Court in the Arbitration Appeal filed by the petitioner himself, as the petitioner has permitted the order dated 11.02.2019 passed in Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 6 WP-16017-2023 Arbitration Appeal No.3/2016 to attain finality. Accordingly, learned counsel prays for dismissal of the writ petition.
7. No other point has been pressed by the learned counsel for the parties.
8. Heard learned counsel for the parties and perused the material available on record.
9. The sole issue which arises for consideration by this Court is as to whether, the learned Commercial Court while passing the order dated 28.06.2023 and adjourning the proceedings for a period of four months thereby giving the arbitral tribunal an opportunity to resume the arbitral proceedings and pass an award has acted contrary to the directions issued by the Division Bench of this Court in Arbitration Appeal No.3/2016 vide order dated 11.02.2019 filed by the petitioner himself.
10.Records indicate that in the earlier round, while setting aside the order dated 30.11.2011 passed by the Additional District Judge, Gwalior declining to interfere into the arbitral award dated 09.05.2011, the Division Bench of this Court vide judgment dated 22.04.2016 passed in Arbitration Appeal No.1/2012 (Annexure-P/5) in paragraph 6 has held as under:
"6. From careful scrutiny of the impugned award, it is evident that the grounds raised by the appellant which have been referred by the trial Court in paragraphs 3 and 4 of its order have neither been adverted to nor have been adjudicated while passing the impugned award. The impugned award suffers from non-application of mind and has been passed on cryptic and cavalier manner. It is well settled in law that the Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 7 WP-16017-2023 reason is heart and soul of the order. In the instant case, the trial Court has merely recorded the conclusion without assigning reasons."
11.Thus, in the earlier occasion, the Division Bench of this Court has recorded a finding that the impugned award suffers from non- application of mind and has been passed on cryptic and cavalier manner. Subsequently, on being remanded, the Additional District Judge passed an order dated 18.10.2016 thereby, setting aside the arbitral award and remanded the matter to the arbitrator for passing an award afresh which order was challenged by the petitioner himself before this Court in Arbitration Appeal No.3/2016, and the Division Bench of this Court vide order dated 11.02.2019, interfered in the matter in the following manner:
"The issue which arises for consideration, as to whether it was within the competence of the Trial Court to have wholesale remanded the matter by setting aside the award with a direction to decide the matter afresh is no more res integra and has been settled at rest by judgment by Supreme Court in Kinnari Mullick and another Vs. Ghanshyam Das Damani, (2018) 11 SCC 328; wherein it is held by their Lordships:
"13. We have heard the learned counsel for the parties. At the outset, we may note that if the plea taken by the appellants in relation to the concluding part of the impugned judgment- of sending the award back to the Arbitral Tribunal for recording reasons- was to be accepted, we may not be required to dilate on any other argument. Inasmuch as the learned Single Judge allowed the Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 8 WP-16017-2023 application under Section 34 of the Act for setting aside of the award preferred by the appellants; and the Division Bench has already affirmed the conclusion recorded by the learned Single Judge while dismissing the appeal preferred by the respondent. Thus, the award has been set aside on that count. The respondent has not challenged that part of the impugned judgment and has allowed it to become final.
14. In this backdrop, the question which arises is: whether the highlighted portion in the operative part of the impugned judgment of the Division Bench can be sustained in law ? For that, we may advert to Section 34(4) of the Act which is the repository of power invested in the Court. The same reads thus:
"34. (4) On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the Arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award."
15. On a bare reading of this provision, it is amply clear that the Court can defer the hearing of the application filed under Section 34 for setting aside the award on a written request made by a party to the arbitration proceedings to facilitate the Arbitral Tribunal by resuming the arbitral proceedings or to take such other action as in the opinion of the Arbitral Tribunal will eliminate the Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 9 WP-16017-2023 grounds for setting aside the arbitral award. The quintessence for exercising power under this provision is that the arbitral award has not been set aside. Further, the challenge to the said award has been set up under Section 34 about the deficiencies in the arbitral award which may be curable by allowing the Arbitral Tribunal to take such measures which can eliminate the grounds for setting aside the arbitral award. No power has been invested by Parliament in the Court to remand the matter to the Arbitral Tribunal except to adjourn the proceedings for the limited purpose mentioned in sub-section (4) of Section 34. This legal position has been expounded in McDermott International Inc. Vs. Burn Standard Co. Ltd., (2006) 11 SCC
181. In para 8 of the said decision, the Court observed thus: (Bhaskar Industrial Development Ltd. vs. South Western Railway, 2016 SCC Online Kar 8330) "8. ...... Parliament has not conferred any power of remand to the Court to remit the matter to the Arbitral Tribunal except to adjourn the proceedings as provided under sub-section (4) of Section 34 of the Act. The object of sub-
section (4) of Section 34 of the Act is to give an opportunity to the Arbitral Tribunal to resume the arbitral proceedings or to enable it to take such other action which will eliminate the grounds for setting aside the arbitral award."
Thus, being settled that, the Court while deciding the petition under Section 34 of 1996 Act has no jurisdiction to remand the matter to the Arbitrator for a fresh decision;
Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:27737 10 WP-16017-2023 therefore, the impugned order to the extent it set asides the award and remand the matter to the 'Arbitrator' for fresh decision, cannot be approved. However, since the Trial Court was in seisin with the petition under Section 34 of 1996 Act on its remand by order dated 22.04.2016 passed in A.A.No.1/2012 for adjudication on the objection afresh preferred by the General Manager, BSNL. And since the Trial Court formulated an opinion that the said objection and the cogent material whereon the objections were raised were not considered by the Arbitrator; therefore, while setting aside the impugned order, the proceedings under Section 34 of 1996 Act before the Trial Court is restored with a direction to the Trial Court to exercise the jurisdiction/discretion conferred under sub-section (4) of Section 34 of 1996 Act; and adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal will eliminate the ground for setting aside the arbitral award.
The appeal is disposed of finally in above terms. No costs. "
[Emphasis supplied]
12.It is thus evident that in the arbitration appeal filed by the petitioner himself, the Division Bench of this Court, took note of the fact that the trial Court once has formulated an opinion that there exist cogent material whereon objections were raised were not considered by the arbitrator, while restoring the proceedings under Section 34 of the Act of 1996, directed the trial Court for exercise of the jurisdiction/discretion conferred under Section 34(4) of the Act of 1996, and further directed for adjourning the proceedings for period of time Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737
11 WP-16017-2023 determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the ground for setting aside the arbitral award. Then, in compliance of the aforesaid order, the learned trial Court has passed the impugned order dated 28.06.2023 and the operative portion thereof reads as under:
"......................... In view of the aforesaid direction this court deems it appropriate to adjourn proceedings for a period of four months time in order to give the Arbitral Tribunal an opportunity to resume the Arbitral proceedings and to pass the Arbitral award after considering the documents produced in this court vide application dated 08.07.2016 and the other documents produced by the parties and not taken into consideration while passing the impugned award.
To appear before Arbitrator next date is fixed 20.07.2023. Parties are directed to appear before the Ld. Arbitrator on that dated at 11-00 A.M. Record of the Arbitrator, if any with this court, same be sent to the Ld. Arbitrator after obtaining proper receipt.
Let the case be fixed after four months time on date 20.11.2023 for awaiting Arbitral Award and record of the Arbitrator for further proceedings by this court."
13.The perusal of the impugned order in the instant writ petition clearly indicates that the learned Commercial Court had simply quoted the directions issued by the Division Bench of this Court vide order dated 11.02.2019 and has adjourned the proceedings so as to provide opportunity to the arbitral tribunal in terms of the directions already issued by the Division Bench of this Court. The said direction cannot be construed to be an order of remand of the matter to the arbitral tribunal, Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 12 WP-16017-2023 but the same is an adjournment of the proceedings in terms of Section 34(4) of the Act of 1996 in compliance of the judicial order dated 11.02.2019, so as to give arbitral tribunal an opportunity to resume arbitral proceedings or to take such action is lawfully required.
14.Once the petitioner has himself allowed the order dated 11.09.2019 passed in Arbitration Appeal No.3/2016 by the Division Bench of this Court to attain finality, he cannot be permitted to urge contrary, and therefore, in the given facts and circumstances of the case, the judgment in the case of I-Pay Clearing (supra) relied upon by the petitioner may have no applicability. In the considered opinion of this Court, the learned Commercial Court had no other option but to comply the direction issued by the Division Bench of this Court vide order dated 11.02.2019.
15.That apart, it is evident that the petitioner herein while questioning the impugned order dated 28.06.2023 has invoked the writ jurisdiction of this Court under Article 227 of the Constitution of India. It is settled in law that the petition under Article 227 of the Constitution of India is having limited scope for interference. The Hon'ble Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil, 2010 (8) SCC 329, had formulated following principles for exercise of High Court's jurisdiction under Article 227 of the Constitution of India :
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 13 WP-16017-2023 different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court."
16.Looking to the limited scope of interference in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India, as held by the Apex Court in the case Shalini Shyam Shetty (supra), no case for interference is made out in the instant writ petition.
17.Accordingly, the writ petition being bereft of merits, is hereby dismissed.
18.Interim relief granted earlier stands vacated.
19.Pending application(s), if any, shall also stand disposed of.
(AMIT SETH) JUDGE Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:27737 14 WP-16017-2023 Adnan Signature Not Verified Signed by: ADNAN HUSAIN ANSARI Signing time: 10/31/2025 6:41:29 PM