The
Hon’ble Supreme Court clarified behind doubt as to which court will have the
jurisdiction to entertain and decide an application for setting aside the award
under section 34 of the Act
The Hon’ble Supreme Court of
India in civil appeal No.6691 of 2005 with civil appeal No.4808 of 2013, between State of West Bengal and others V/s
Associated contractors, the larger bench decided the jurisdiction to
entertain and decide an application for setting aside the award under section
34 of the Act. The Hon’ble Supreme Court concluded that:
“(a) Section 2(1)(e) contains
an exhaustive definition marking out only the Principal Civil Court of original
jurisdiction in a district or a High Court having original civil jurisdiction
in the State, and no other court as "court" for the purpose of Part-I
of the Arbitration Act, 1996.
(b) The expression "with
respect to an arbitration agreement" makes it clear that Section 42 will
apply to all applications made whether before or during arbitral proceedings or
after an Award is pronounced under Part-I of the 1996 Act.
(c) However, Section 42 only
applies to applications made under Part-I if they are made to a court as
defined. Since applications made Under Section 8 are made to judicial
authorities and since applications Under Section 11 are made to the Chief
Justice or his designate, the judicial authority and the Chief Justice or his
designate not being court as defined, such applications would be outside
Section 42.
(d) Section 9 applications
being applications made to a court and Section 34 applications to set aside
arbitral awards are applications which are within Section 42.
(e) In no circumstances can the
Supreme Court be "court" for the purposes of Section 2(1)(e), and
whether the Supreme Court does or does not retain seisin after appointing an
Arbitrator, applications will follow the first application made before either a
High Court having original jurisdiction in the State or a Principal Civil court
having original jurisdiction in the district as the case may be.
(f) Section 42 will apply to
applications made after the arbitral proceedings have come to an end provided
they are made under Part-I.
(g) If a first application is
made to a court which is neither a Principal Court of original jurisdiction in
a district or a High Court exercising original jurisdiction in a State, such
application not being to a court as defined would be outside Section 42. Also,
an application made to a court without subject matter jurisdiction would be
outside Section 42”.
Consequently the Hon’ble High Court of Kolkata
conclusion that “since the parties already had submitted to the jurisdiction of
this Court in its Ordinary Original Civil jurisdiction in connection with
different earlier proceedings arising out of the said contract, as indicated
above, the jurisdiction of the court of the learned District Judge at
Jalpaiguri to entertain the said application for setting aside of the award was
excluded Under Section 42 of the said Act. Thus, I find that this Court in its
Ordinary Original Civil Jurisdiction is the only court which can entertain an
application for setting aside the said award”, was held to be correct by the 3
bench of the Hon’ble Supreme Court on a reference made by division bench.
Prepared by: S. Hemanth
Advocate at Hemanth &
Associates
