JUDGMENT Ramesh Kumar Merathia, J. 1. All these connected matters were heard together and are being disposed of by this common order. 2. The relevant facts in short are as follows. Engineering Projects (India) Ltd., hereinafter referred as - the Judgment Debtor (J. Dr.), placed purchase order dated 5.12.1991 to Indiana Engineering Works (Bombay) (P) Ltd., hereinafter referred as -the Decree Holder (D. Hr.), for supply of shuttle conveyors, which order was completed by November, 1993. On the ground that the J. Dr. failed to make payment of the due principal sum and interest to the tune of Rs. 31,53,662/- calculated up to 30.6.1995, the D. Hr. filed company petition being C.P. No. 7 of 1995(R) before the Ranchi Bench of Patna High Court. By order dated 10.3.1997, the Company Court directed for winding up of the J. Dr. Against that order the J. Dr. filed intra court appeal being L.P.A. No. 173 of 1997(R) (L.P.A. for short). By order dated 23.4.2001, the L.P.A. was disposed of. The order of winding up was set aside and an agreed order was passed appointing Mr. Loknath Prasad, retired Judge, of Patna High Court as one man arbitral tribunal to adjudicate the disputes between the parties. The arbitration proceedings were held at Ranchi and the Award was passed on 24.3.2006. As per the award, the D. Hr. was found entitled to get Rs. 11,98,855.00 along with interest thereon @ 12% per annum from 1.5.1994 till the date of signing of the award, within two months from the award, failing which, interest @ 18% per annum was also to be paid on such awarded amount, from the date of the award, till the date of payment. However, the claim of the D.Hr. to grant interest as per the provisions of "Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertaking Act, 1993" (for short 1993 Act) was refused. D. Hr. filed the application in question under Section 34 of the Act on 23.7.2003 before the learned Sub Judge-I, Ranchi for setting aside that portion of the Award refusing to grant interest under 1993 Act, and claiming grant of interest as per 1993 Act. Thereafter on 3.9.2003 the J. Dr. D. Hr. filed the application in question under Section 34 of the Act on 23.7.2003 before the learned Sub Judge-I, Ranchi for setting aside that portion of the Award refusing to grant interest under 1993 Act, and claiming grant of interest as per 1993 Act. Thereafter on 3.9.2003 the J. Dr. filed an application under Section 36 of the Act read with Order XXI, Rule 1 of the Code of Civil Procedure (CPC) arising out of the said Award before Hon'ble Delhi High Court, being Arbitration Petition No. 198 of 2003 which was rejected vide order dated 22.7.2004. The Delhi High Court found that such application was filed by the J. Dr. with oblique motive to confine jurisdiction to courts in Delhi. The J. Dr. asserted that a cheque dt. 22.05.2003, for Rs. 25,89,035/- was offered to the D. Hr. purportedly in full settlement of the decree, but the Delhi High Court found that the cheque was not tendered to the D. Hr. The J. Dr. also contended that Ranchi Court had no territorial Jurisdiction. The court inter alia said that the said application of the J. Dr. was devoid of any merit and had the hidden agenda of ousting jurisdiction inconvenient to it. The court then ordered: In these circumstances, I am satisfied that the petition should be disposed of at this stage by permitting the petitioner/Judgment Debtor to deposit the said sum of Rs. 25,89,035/- or any greater or lesser amount in discharge of its legal obligation to pay the amounts due in respect of the Award dated 24.3.2003. x x x ...The insistence that territorial jurisdiction at New Delhi should be decided pursuant to an attempted invocation of Section 36 is not always innocuous, as I have already observed at the beginning of the order, but on the contrary is mala fide in this case. A party cannot be permitted to abuse judicial process by filling a frivolous petition in order to invoke the territorial jurisdiction of particular Court and thereby oust jurisdiction of all others. The correspondence which has been addressed by the Petitioner shows that it had unfairly and unjustifiable insisted that the tender of money was to be in full and final settlement. If there is an insistence of this nature, Order XXI Rule 1 does not come into operation. The correspondence which has been addressed by the Petitioner shows that it had unfairly and unjustifiable insisted that the tender of money was to be in full and final settlement. If there is an insistence of this nature, Order XXI Rule 1 does not come into operation. It is palpably clear to me that without any cause of action the present Petition under Section 36 of the Act has been filed in order to unfairly take advantage of Section 42 of the Act. x x x 7. Since the learned Counsel for the Petitioner has insisted that a ruling should be made on territorial jurisdiction, I have no alternative but to reject the Petition, since, in my considered opinion, this Court does not have any territorial jurisdiction to entertain a Petition under Section 36 of the Arbitration & Conciliation Act, 1996 or Order XXI of the Code Civil Procedure as it does not have an executable decree before it. It is clarified however that those orders should not be construed as deciding the issue of whether the Courts at Ranchi have jurisdiction to entertain and decide the objections filed by the Respondent herein. It has been argued by Ms. Chopra that the contract between the parties contains a covenant that Delhi Courts alone shall have jurisdiction over future disputes. However, these considerations should be canvassed before the Court where the objections are presently pending. 8. Dismissed. This order of the Delhi High Court was/is binding on the Parties. The J. Dr. then filed it's show cause in the said M.J.C. No. 132 of 2003 before learned Sub Judge-I, Ranchi, and also filed a petition on 4.10.2004 for deciding the question of territorial jurisdiction as preliminary issue. The case was transferred to learned Sub Judge-II, Ranchi. By order dated 8.6.2006, the learned Sub Judge-II, Ranchi held that it had jurisdiction to entertain the said M.J.C. No. 132 of 2003 filed by the D. Hr. and dismissed the petition dated 4.10.2004 filed by the J. Dr. raising preliminary objection about the territorial jurisdiction. The case was transferred to learned Sub Judge-II, Ranchi. By order dated 8.6.2006, the learned Sub Judge-II, Ranchi held that it had jurisdiction to entertain the said M.J.C. No. 132 of 2003 filed by the D. Hr. and dismissed the petition dated 4.10.2004 filed by the J. Dr. raising preliminary objection about the territorial jurisdiction. Then in the order dated 9.6.2006, learned Sub Judge-II observed that he passed the said order dated 8.6.2006 contrary to the law laid down in the case reported in Monghyr Electric Supply Company Ltd. Invoking Section 151 CPC it heard the parties and by order dated 15.6.2006, relying on the said decision of Monghyr Electric Supply Company Ltd., learned Sub Judge-II, Ranchi held that, under Section 446(2) of the Company Act, only the Company Court can entertain the said petition filed under Section 34 of the Act and allowed the petition dated 4.10.2004 filed by the J. Dr. 3. Arbitration Appeal No. 10 of 2006 has been filed by the D.Hr. against the said order dated 15.6.2006 passed in M.J.C. No. 132 of 2003 by learned Sub Judge-II, Ranchi. Company Petition No. 2 of 2006 has been filed by the D. Hr. under Section 34 of the Act read with Section 446(2) of the Companies Act, challenging the said part of the Award, in the event it is held in Arbitration Appeal No. 10 of 2006 that the Company Court has got jurisdiction. W.P.(C) No. 2204 of 2007 has been filed by the J. Dr. against the same order dated 15.6.2006 which has been challenged by the D. Hr. in Arbitration Appeal No. 10 of 2006. 4. During the course of hearing on 18.7.2008, Mr. Shivnath appearing for the J. Dr. submitted that the J. Dr. offered the awarded amount, but the D. Hr. refused to accept. On this Mr. Poddar, appearing for the D.Hr., submitted that even though, the award has become final, the J. Dr. did not offer the amount as per the award and therefore the D. Hr. was justified in not accepting the same. However, Mr. Poddar submitted that if the amount is paid as per the award, he may advise his client not to pursue the claim of interest as per 1993 Act. Accordingly, the J. Dr. was directed to pay the awarded amount including the interest, as per the award, calculated up to June 2008, to the D. Hr. However, Mr. Poddar submitted that if the amount is paid as per the award, he may advise his client not to pursue the claim of interest as per 1993 Act. Accordingly, the J. Dr. was directed to pay the awarded amount including the interest, as per the award, calculated up to June 2008, to the D. Hr. and the D. Hr. was directed to accept the same, without prejudice to their contentions. But on 19.9.2008, the J. Dr. handed over a draft dt. 8.8.2008 to the D. Hr. for Rs. 25,89,035/- only, which was not as per the award. However, the D.Hr., was asked to encash it, without prejudice to all it's contentions. 5. Mr. Shivnath, appearing for the J.Dr. raised objection to the maintainability of Arbitration Appeal No. 10 of 2006 referring to Section 37 of the Act. He submitted that the order in question is not an order setting aside or refusing to set aside an arbitral Award and therefore Arbitration Appeal No. 10 of 2006 is not maintainable. Mr. Poddar, relying on the decision reported in (2000) 6 SCC 1994 ESSAR Construction, etc. and (2006) 13 SCC 622, Chief Engineer of B.P.D./R.E.O., Ranchi, etc., submitted that the order refusing to entertain application under Section 34, on the ground of jurisdiction, amounts to refusal to set aside the Award. 6. I find force in the submission of Mr. Poddar, in view of the said judgments. It was, inter alia, held in the case of ESSAR Construction (Supra) that the outcome of the order of the trial court 'in effect' was that the prayer for setting aside the Award was refused. It is true that the provisions of the Arbitration Act in 1940 were considered in the case of ESSAR Construction (Supra), but the judgment of ESSAR Construction (Supra) was relied in the case of Chief Engineer, BPD (Supra), while dealing with a case under Section 37 of the Arbitration Act 1996 and it was held that appeal was maintainable, even if the application under Section 34 of the Act is dismissed on the ground of limitation only. Thus the first objection raised by Mr. Shivnath regarding maintainability of Arbitration Appeal No. 10 of 2006 is rejected. 7. The next question is of forum. Thus the first objection raised by Mr. Shivnath regarding maintainability of Arbitration Appeal No. 10 of 2006 is rejected. 7. The next question is of forum. The learned Sub Judge has held, in the order, impugned by both the parties, that the Company Court has jurisdiction to entertain the application filed by the D.Hr., before him. In my opinion, the application of the D.Hr. in question, is not maintainable before the Company Curt, for the following reasons. In the Case of Monghyr Electric Supply Company Ltd. (Supra) relied by learned Sub Judge, the said company was under liquidation. The Official Liquidator filed an application under Section 20 of the Arbitration Act 1940 for a direction for referring the dispute to arbitration. In view of Section 446(2) of the Companies Act, it was rightly held that such application was maintainable only before the Company Court where the liquidation proceedings were pending. In the present case, in the L.P.A.; the High Court, set aside the order of winding up, and appointed Arbitrator, without retaining any power or control over the arbitration proceedings. Paragraph-7 to 9 of the judgment reported in (2004)1SCC540 National Alluminium Co. Ltd. v. Pressteel & Fabrications (P) Ltd. and (2008) 6 SCC 741 Garhwal Vikas Mandal v. Krishna Travel Agency fully supports the contention of the D. Hr. that the application in question filed by it before learned Sub Judge, is not maintainable before the Company Court. It may be noted here that the J.Dr. has also challenged the order dated 15.6.2006, impugned by the D. Hr. in it's connected writ petition. Mr. Shivnath, appearing for J. Dr. , also submitted that he cannot argue that the Company Court has the jurisdiction to entertain the application in question. Thus it is held that the application in question filed by the D.Hr. under Section 34 of the Act, is not maintainable before the Company Court. Accordingly, the impugned order dated 15.6.2006 is set aside. In view of this position, no order need be passed in C.P. No. 2 of 2006 which has been filed by way of abundant caution, in the event, it is held that the Company Court has jurisdiction to entertain the application in question. 8. Mr. v. Shivnath, then submitted that it is true that in W.P.C. No. 2204 of 2007, the J.Dr. 8. Mr. v. Shivnath, then submitted that it is true that in W.P.C. No. 2204 of 2007, the J.Dr. has not specifically challenged the said order dated 8.6.2006 passed by learned Sub Judge, in which he held that it had jurisdiction to entertain the application in question, filed under Section 34 of the Act by the D.Hr., but actually the order dated 8.6.2006 has been challenged by the J.Dr. in the writ petition as the contention of the J.Dr. has been that the original side of the Delhi High Court only has got jurisdiction to entertain the application in question in view of Clause 29 of the agreement, "Regarding Court's jurisdiction" that "dispute of any nature that may arise in connection with the execution of contract shall be subjected to the jurisdiction of the Court situated in Delhi/New Delhi only." 9. On the other hand, Mr. Poddar submitted that the J.Dr. has not challenged the said order dt. 8.6.2006; and that in the facts and circumstances of this case, learned Sub Judge had rightly held that it had jurisdiction; and that the said Clause 29 will not oust the jurisdiction of Ranchi Court. 10. As noticed above, the Delhi High Court observed that the objection regarding territorial jurisdiction be raised before learned Sub Judge, Ranchi. Accordingly the parties were heard and under the order dated 8.6.2006, learned Sub-Judge, Ranchi held that it had jurisdiction, to entertain the application in question. Then he suo motu reheard the matter and held in the impugned order dated 15.6.2006, that the Company Court, Ranchi, has got jurisdiction. In my opinion, it rightly held in the order dated 8.6.2006, that it had jurisdiction. Section 42 of the Act, will prevail over the said Clause 29 of the agreement, which is governed by the Contract Act. The case reported in Ramkripal Sharma, may be seen. The provisions of Section 42 of the Act are similar to the provisions of the Section 31(4) of the Arbitration Act 1940. In view of Section 42 read with Section 2(e) of the Act the concurrence of jurisdiction gets eliminated, the moment an application is filed first in one of the two courts, having jurisdiction and it is that court which acquires jurisdiction to the exclusion of the other in all subsequent matters also. In view of Section 42 read with Section 2(e) of the Act the concurrence of jurisdiction gets eliminated, the moment an application is filed first in one of the two courts, having jurisdiction and it is that court which acquires jurisdiction to the exclusion of the other in all subsequent matters also. In the facts of this case, it cannot be disputed that the application in question, could be filed either before, Civil Court at Ranchi or before the original side of Delhi High Court. The D.Hr. filed it before learned Sub Judge at Ranchi. Thus the Sub Judge, Ranchi alone shall have jurisdiction over all subsequent applications arising out of the agreement and the arbitral proceeding. The purpose behind Section 42 of the Act, is to avoid conflicting order, and delay in the arbitration matters. It has been rightly observed by the Delhi High Court in the case of Sasken Communication Technologies Limited v. Prime Telesystems Limited and Ors. reported in 2002 (3) A.L.R. 388 that: Section 42 of the Arbitration Act relating to the jurisdiction of the Courts puts a positive embargo against the invoking of the jurisdiction of different Courts by laying down that notwithstanding anything contained elsewhere in the said part of the Act or in any other law for the time being in force, where the respect to an arbitration agreement any application under the said part has been made in a Court that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of Court. This section provides the Forum for entertaining the applications under the Act and is intended to ensure that all the proceedings in relation to an arbitration agreement take place in the same Court so as to avoid conflict of decisions. It is also intended to prevent undue harassment of the parties by putting them before the same Court in spite of action might have arisen. 11. In the result all these cases are disposed of by upholding the order dated 8.6.2006, passed by learned Sub Judge II, Ranchi, and setting aside it's order dt. 15.6.2006. Learned Sub Judge will pass order on the application in question filed by the D.Hr. under Section 34 of the Act expeditiously. The parties are directed to co-operate. No costs. All the cases disposed of.