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2011 DIGILAW 615 (JK)

T. S. S. A Associates v. U. O. I & ors.

2011-11-09

J.P.SINGH

body2011
1. Learned Principal District Judge, Kathua rejected appellant's Application seeking stay of Northern Railways' Communication No.74-W/1/1/358/WA/ PTK/ARB dated 19.06.2008 whereby reference was made to Arbitration Tribunal for settlement of disputes raised by the appellant in respect of Contract: “Balance work of Earth work and Blanketing in formation, in embankment and in cutting including mechanical compaction and Construction of Minor Bridges of RCC Boxes, RCC Slabs & PSC Slabs, Hume pipes and other allied works between Madhopur Punjab (excluding) (KM.12.250) to Budhi (including) (KM.32.639) in connection with doubling of Jalandhar-Pathankot-Jammu, Tawi section”. 2. Aggrieved by non-consideration of its Application filed under Section 9 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997, the appellant has approached this Court in Appeal questioning the Order of learned District Judge. 3. Heard learned counsel for the parties. 4. Learned Principal District Judge has rejected appellant's Application holding that it was not maintainable before him in view of appellant's having approached the Chief Justice of this Court for appointment of Arbitrator. In taking the above view, learned District Judge has relied upon the provisions of Section 42 of the Act. 5. To appreciate the submissions advanced at the Bar, reference needs to be made to the provisions of Section 42 of the Jammu and Kashmir Arbitration and Conciliation Act, which reads thus:- “Section 42-Jurisdiction : Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.” 6. Perusal of the above provisions of Section 42 reveals that it is only when an application in respect of an Arbitration Agreement was filed in any Court, then only that Court would have jurisdiction to deal with subsequent applications regarding Arbitral proceedings. Section 42 would, however, apply only if an application had been filed in a Court and not in any other Forum. 7. Section 42 would, however, apply only if an application had been filed in a Court and not in any other Forum. 7. The Appellant's approach to the Chief Justice for appointment of Arbitrator, cannot be said to his having approached a Court, as defined in Section 2 (e) of the Act, in that, although the proceedings held by the Chief Justice or his designate, for appointment of Arbitrator under Section 11 of the Jammu and Kashmir Arbitration and Conciliation Act, have Judicial characteristics, yet the Chief Justice or his designate under Section 11 would not be Court in terms of Section 2 (1) (e) of the Act. 8. I am supported in taking the above view by Rodemadan India Ltd. versus International Trade Expo Centre Ltd., reported as (2006) 11 SCC, 651, where while dealing with a similar issue, it was held as follows:- “Finally, it is contended that as recourse had been taken by the petitioner under Section 9 of the Act to obtain interim relief by moving the Delhi High Court by their original petition OWP No. 98 of 2005 dated 24.03.2005, by reason of Section 42 of the Act that court alone could have jurisdiction upon the Arbitral Tribunal. In my view, this contention has no merit as I have held earlier, neither the Chief Justice nor his designate under Section 11 (6) is a “court” as contemplated under the Act. Section 2 (1) (e) of the Act defines the expression “court”. The bar of jurisdiction under Section 42 is only intended to apply to a “court” as defined in Section 2 (1) (e). The objection, therefore, has no merit and is rejected.” 9. In view of the above legal position, the appellant's moving Hon'ble the Chief Justice for appointment of Arbitrator, would not oust the jurisdiction of the territorial Court in terms of Section 2(1) (e) of the Act, to entertain Application under Section 9 of the Act. 10.The order passed by the learned Principal District Judge, refusing to entertain appellant's application on the ground that it lacked jurisdiction as appellant had approached the Chief Justice of this Court for appointment of Arbitrator, without considering as to whether or not any case for issuance of interim directions was warranted under law, cannot, therefore, be sustained. 11. 10.The order passed by the learned Principal District Judge, refusing to entertain appellant's application on the ground that it lacked jurisdiction as appellant had approached the Chief Justice of this Court for appointment of Arbitrator, without considering as to whether or not any case for issuance of interim directions was warranted under law, cannot, therefore, be sustained. 11. For all what has been said above, this Appeal, therefore, succeeds and is, accordingly, allowed setting aside learned Principal District Judge, Kathua's Order dated 30.01.2009 whereby appellant's Application under Section 9 was rejected. 12. The appellant's Application under Section 9 shall revive before the learned District Judge for its consideration afresh in accordance with law.