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2012 DIGILAW 685 (UTT)

NKG Infrastructure Limited v. State

2012-11-06

B.S.VERMA

body2012
JUDGMENT B.S. Verma, J. 1. Since no factual dispute is involved in this writ petition and only a legal question is to be decided, therefore, the writ petition is being decided finally today itself at admission stage with the consent of learned counsel for the parties. 2. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 26.7.2012 passed by Additional District Judge, Almora in Arbitration Misc. Case No.12 of 2012. 3. An application for interim measures under Section 9 of the Arbitration and Conciliation Act was filed by the petitioner before the District Judge, Almora. It appears that subsequently the same was transferred to the court of Additional District Judge, Almora. The respondents also moved an application bearing no.35b stating that this court has no jurisdiction under section 2(e) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) and that the matter is exclusively triable by Civil Judge (Senior Division) Almora. Before the court below, the petitioner contended that the District Judge is the principal civil court of original jurisdiction. Under Section 8(2) of Bengal, Agra and Assam Civil Court Act, 1887, the Additional District Judge has same power over the matters which the District Judge assigns to him. After hearing the parties, the learned Additional District Judge, by the impugned order dated 26.07.2012, allowed the application of the respondent and made a request to District Judge to transfer the petition u/s. 24(5) of Civil Procedure Code, 1908 to the Civil Judge (Senior Division), Almora. While dealing with the matter, the learned Additional District Judge placed reliance upon the judgment of this Court in case of National Hydroelectric Power Corporation Ltd. vs. Asian Techs Rani Constructions Joint Venture and Others, 2003 (1) U.D. 74 and relied upon para-16, which is extracted hereunder:- “16. From the above, it is clear that Principal Civil Court of original jurisdiction in a district will be the Court where an application for enforcement of the award as decree shall have to be filed. It is not in dispute that Court of Civil Judge (Senior Division) has unlimited pecuniary jurisdiction. Consequently, the Court of Civil Judge (Senior Division) has to held as the Principal Civil Court of original jurisdiction in a district as contemplated by the definition of Court under section 2(e) of the Act.” 4. It is not in dispute that Court of Civil Judge (Senior Division) has unlimited pecuniary jurisdiction. Consequently, the Court of Civil Judge (Senior Division) has to held as the Principal Civil Court of original jurisdiction in a district as contemplated by the definition of Court under section 2(e) of the Act.” 4. Additional District Judge also placed reliance upon the judgment of this Court in case of Massoud Hadiahmad vs. State of Uttarakhand, 2006 (2) U.D. 110, wherein the Division Bench of this Court has inter alia observed:- “There is no ‘City Civil Court’ designed in the State of Uttarakhand, therefore, in that circumstance Court of Civil Judge (Senior Division) being the Principal Civil Court has power to entertain the suit in question under section 9 of Code of Civil Procedure, 1908 read with Bengal, Agra, Assam Civil Courts Act, 1887.” 5. Being aggrieved by the impugned order, the petitioner has filed the present writ petition. 6. Learned counsel for the petitioner has contended that the learned Additional District Judge has misread the definition of “Court” given under section 2(1)(e) of the Act. “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.” 7. It is further contended that as per the definition of the “Court” the Court does not include any civil court of a grade inferior to such principal civil court or any court of small causes. The court of Civil Judge is a inferior civil court. 8. Learned counsel for the petitioner further contended that this Court in Writ Petition No. 2173 (M/S) of 2012 Deewan Singh vs. Union of India, after considering the judgment of Allahabad High Court in the case of M/s. I.T.I. Ltd. Allahabad vs. District Judge, Allahabad, AIR 1998 Allahabad 313, has held that the court of District Judge is the Principal Civil Court of original jurisdiction. 9. I have heard the learned counsel for the parties and have also perused the impugned orders. 10. 9. I have heard the learned counsel for the parties and have also perused the impugned orders. 10. By a perusal of the judgment of the learned Single Judge in National Hydroelectric Power Corporation Ltd. case (Supra), it transpires that the judgment rendered by the Allahabad High Court in M/s I.T.I. Ltd. Case was not considered. Thus, the judgment rendered by the learned Single Judge is per incuriam. 11. The second judgment which has been relied by the Additional District Judge of the Division Bench of this Court in Massoud Hadjiahmad’s case (Supra) was rendered in respect of the Juvenile Justice Act and the provisions of the Arbitration Act were not considered. Thus, the same is not applicable to the present facts of the case. 12. By a perusal of the impugned order, it emerges out that the application u/s 9 of the Act was moved by the petitioner before the District Judge, Almora, which subsequently was transferred to the Additional District Judge for final disposal. The learned District Judge, relying upon the judgments of this Court, referred above, has held that u/s. 2(1)(e) of the Act, Civil Judge (Senior Division) is the Principal Civil Court. 13. The above controversy has also come before the Bombay High Court in the case of M/s. Fountain Head Developers vs. Mrs. Maria Arcangela Sequeira (FB), AIR 2007 Bombay 149, wherein the Full Bench of the Bombay High Court, in paragraph 2, has considered the question as to whether it is the Civil Judge, Senior Division or the District Court which should be construed as being the Principal Court of a original jurisdiction for the purpose of petition u/s 34 of the Arbitration and Conciliation Act, 1996. The answer to this question was given in paragraph 18:- “The principal civil court of original jurisdiction in a district for the purpose of a petition under section 34 of the Act of 1996 is a District Court and does not include any other Court inferior to the District Court.” 14. While dealing with this question, the Full Bench of the Bombay High Court placed reliance upon the judgment of the Apex Court rendered in the case of M/s. S.B.P. Patel & Co. While dealing with this question, the Full Bench of the Bombay High Court placed reliance upon the judgment of the Apex Court rendered in the case of M/s. S.B.P. Patel & Co. vs. M/s. Patel Engineering Ltd. & Another, AIR 2006 SC 450, while dealing with the provisions of Section 11 of the Act of 1996, in paragraph 12 of the judgment has observed that “the Court is defined in the Act to be the principal civil court of original jurisdiction of the district and includes the High Court in exercise of its ordinary original civil jurisdiction. The principal civil court of original jurisdiction is normally the District Court. The High Courts in India exercising ordinary original civil jurisdiction are not too many. So in most of the States the concerned court would be the District Court.” 15. The Full Bench of the Bombay High Court further referred a judgment of the Apex Court of Garhwal Mandal vs. M/s. Krishna Travel Agency in Special Leave Petition (Civil) No. 18344 of 2004 decided on 24.1.2007 and has observed that while dealing with the question whether it could entertain all objections to the award and holding that even if the appointment of the Arbitrator is made by High Court or the Supreme Court, the principal civil court of original jurisdiction remains the same as contemplated under section 2(e) of the Act of 1996, and the principal civil Court of original jurisdiction remains the “District Court” even if the appointment of the Arbitrator is made by the High Court. It is thus clear that the Legislature clearly circumscribed and specifically narrowed down the definition of “Court” to mean only the Court of principal civil original jurisdiction in a district and it is only the Court of “District Judge” in a district which is such a “Court” of principal civil jurisdiction. 16. In view of the above well settled principle of law, it is clear that the court of District Judge is the court of Principal Civil Court of original jurisdiction as has been defined u/s 2(1)(e) of the Act. 17. I am further fortified in my view by the judgment of the Apex Court in the case of M/s. Pandey & Co. Builders Pvt. Ltd. vs. State of Bihar & Another, AIR 2007 SC 465, wherein the Supreme Court, in paragraph 17, has held:- “17. 17. I am further fortified in my view by the judgment of the Apex Court in the case of M/s. Pandey & Co. Builders Pvt. Ltd. vs. State of Bihar & Another, AIR 2007 SC 465, wherein the Supreme Court, in paragraph 17, has held:- “17. It is not disputed before us that the Patna High Court does not exercise any original civil jurisdiction. The definition of “court” as noticed hereinbefore means the Principal Civil Court of original jurisdiction in a district and includes the High Court which exercises the original civil jurisdiction. If a High Court does not exercise the original civil jurisdiction, it would not be a ‘court’ within the meaning of the said provision. Constitution of the courts vis-a-vis the hierarchy thereof is governed by the 1887 Act, Section 3 whereof reads as under:- 3. Classes of Courts – There shall be the following classes of Civil Courts under this Act, namely:- (a) The Court of the District Judge. (b) The Court of the Additional Judge. (c) The Court of the Subordinate Judge. (d) The Court of the Munsif. 18. In view of the discussion made in the foregoing paragraphs, I am of the considered view that the Principal Civil Court, as mentioned in Section 2(1)(e) of the Act, is the court of District Judge and not Civil Judge (Senior Division). Therefore, the impugned order dated 26.7.2012 passed by the learned Additional District Judge is set aside on the ground that even the Additional District Judge is not having jurisdiction in view of Section 42 and section 2(1)(e) of the Act. The Court cannot be of an inferior grade from the Principal Civil Court as has also been held by the Allahabad High Court in M/s I.T.I. Ltd. Allahabad vs. District Judge, Allahabad, AIR 1998 Allahabad 313. The Court alone is a court of District Judge, which has jurisdiction to entertain and decide the application moved under Section 34 and 9 of the Act. 19. The writ petition is allowed. District Judge, Almora is directed to hear the application of the petitioner and decide the same in accordance with law after hearing the parties concerned.