Research › Browse › Judgment

Kerala High Court · body

1999 DIGILAW 652 (KER)

Sulekha Clay Mines v. Union of India

1999-12-09

J.B.KOSHY

body1999
Judgment :- J.B. Koshy, J. The question to be decided in this case is the validity of R.2(c) of the Kerala Arbitration and Conciliation (Court) Rules, 1997 thereinafter referred to as 'the rules'). There was an arbitration appeal between the petitioner and the fifth respondent and an award was passed on 26.9.1998. Fifth respondent preferred an application under S.34 of the Arbitration and Conciliation Act, 1996 thereinafter referred to as 'the Act') for setting aside the above award. Ext. P1 is the copy of the application which is pending before the District Court, Trivandrum. Petitioner filed objections to the above. While the above matter was pending an objection was filed by the fifth respondent in O.P. (Arbitration) No. 142/99 stating that the District Court has no jurisdiction to consider Ext. P1 application in view of R.2(c) of the Rules. R.2(c) of the Rules reads as follows: "(c) 'Court' under S.2(e) of the Act for the purpose of deciding any question, excepting appointment of arbitrators under S.11 of the Act, shall be the Principal Sub Court having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit." Contention of the fifth respondent is that the proper Court in view of R.2(c) of the Rules is the Principal Sub Court. It was argued by the counsel for fifth respondent that the above rule is made by the High Court and is binding and valid. Therefore, proceedings should be transferred to the Principal Sub Court. According to the petitioner, R.2(c) of the Rules itself is beyond the rule making power of the High Court under S.82 of the Act as it is inconsistent with S.2(e) of the Act. S.82 of the Act reads as follows: "82. Power of High Court to make rules:- The High Court may make rules consistent with this Act as to all proceedings before the Court under this Act." It was incumbent upon the High Court to see that the rule is consistent with the Act. S.82 of the Act reads as follows: "82. Power of High Court to make rules:- The High Court may make rules consistent with this Act as to all proceedings before the Court under this Act." It was incumbent upon the High Court to see that the rule is consistent with the Act. S.2(e) of the Act reads as follows: "(e) 'Court' means the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes". Therefore, it is clear that the Court is the Principal Civil Court of original jurisdiction in a District. Rule specifically says that it "does not include any civil court of a grade inferior to such Principal Civil Court....". Principal Civil Court in a district is the District Court. This is clear from the definition given in S.2(4) of the Code of Civil Procedure. The District Court has got original jurisdiction in certain types of civil matters. There can be no dispute for the proposition that Principal Civil Court of original jurisdiction in a District is the District Court. Therefore, the 'Court' for the purpose of the Act is only the District Court being the Principal Civil Court of the District and not the Subordinate Court which is inferior in statute to the District Court. Since the Court of inferior character of Principal Civil Court cannot be treated as a 'Court' in view of the specific exclusion under S.2(e) of the Act, R.2(c) of the Rules is inconsistent with the provisions of the Act and invalid. Hence it is declared that R.2(c) of the Rules is invalid and in view of S.2(e) of the Act the District Court -Principal Civil Court in the District - will continue to exercise jurisdiction until rules are amended otherwise on all matters which are to be decided by a 'Court' under the Arbitration and Conciliation Act, 1996 except the appointment of an Arbitrator under S.11 of the said Act. Therefore, I am of the opinion that fourth respondent District Court has jurisdiction to decide the Arbitration O.P. and the Arbitration O.P. has to be decided according to law by that Court itself without transferring the same to the Sub Court. The Original Petition is allowed.