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2013 DIGILAW 285 (ALL)

India Waste Energy Development Limited v. Greater N. O. I. D. A. Industrial Development Authority and Others

2013-01-23

PANKAJ MITHAL

body2013
Pankaj Mithal, J.;— Supplementary affidavit filed, is taken on record. Heard Sri Anoop Trivedi, learned counsel for the petitioner. Sri Nisheeth Yadav, learned counsel appearing for respondents No. 1 and 2. Petitioner in this petition under Article 227 of the Constitution of India read with Section 34/42 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) is challenging the award of the arbitral tribunal dated 8th September, 2012. Petitioner has described the petition as a writ petition. The award of an arbitral tribunal cannot directly be challenged by means of a writ petition under Article 226 of the Constitution of India in view of statutory remedy available to move an application for setting aside the award under Section 34 of the Act before the competent court. Therefore, a writ petition under Article 226 of the Constitution of India is not the proper remedy and is not maintainable. The petition under Article 227 of the Constitution of India is also not maintainable as the power of superintendence of this court over all courts and tribunals is not available where the award is made by an arbitrator under the Act as the arbitrator in adjudicating the dispute does not exercise the States inherent power of judicial function and is not a tribunal in the real sense though described as tribunal. The seven Judges Bench of the Supreme Court in M/s S.B.P. & Co. Vs. M/s Patel Engineering Ltd. AIR 2006 SC 540 has clearly laid down that orders passed by arbitral tribunal are not open to challenge under Article 226 or 227 of the Constitution of India. Thus basically this is an application in the form of a petition under Section 34/42 of the Act for setting aside the arbitral award. A preliminary objection has been raised that an application for setting aside an arbitral award under Section 34 of the Act cannot be filed before the High Court and it should be before the Principal Civil Court of original jurisdiction. Sri Anoop Trivedi, learned counsel for the petitioner contends that the arbitrator was appointed by this court and therefore, in view of Section 42 of the Act all subsequent applications would lie before this court only. Sri Anoop Trivedi, learned counsel for the petitioner contends that the arbitrator was appointed by this court and therefore, in view of Section 42 of the Act all subsequent applications would lie before this court only. No doubt Section 42 of the Act postulates that all subsequent applications under the Act in respect of an arbitration agreement shall lie before the same court in which any application had been made earlier but the reference to applications in Section 42 of the Act by necessary implication is to the applications other than applications referred to in Section 11 of the Act i.e. all applications which are supposed to be filed before a Court. The 'court' is defined under Section 2(e) of the Act to mean the Principal Civil Court of original jurisdiction in a district and may include a High Court in exercise of its ordinary civil jurisdiction having jurisdiction to decide the questions forming the subject matter of the arbitration, if it had been the subject matter of the suit and would not include any civil court of a grade inferior to such principal Civil Court. It has been settled by various authorities that the court of District Judge in district would be a Principal Civil Court of original jurisdiction for the purposes of court under the Act. It is well acknowledged that the High Court of Judicature at Allahabad is not a court exercising ordinary civil jurisdiction and therefore, is outside the ambit of the word 'Court' used in the Act. The Apex Court in M/s Pandey and Co. Builders Pvt. Ltd. Vs. State of Bihar AIR 2007 SC 465 with reference to the definition in Section 2(e) of the Act laid down that High Court not exercising original civil jurisdiction is not a court. The Chief Justice as referred in Section 11 of the Act in making a reference to an arbitral tribunal has not been referred to and included within the ambit of a 'court' as defined under Section 2(e) of the Act. The power which has been vested in the Chief Justice by virtue of Section 11 of the Act is different and not that which has been conferred upon any court as contemplated by the Act. The power which has been vested in the Chief Justice by virtue of Section 11 of the Act is different and not that which has been conferred upon any court as contemplated by the Act. Therefore, for the purposes of making an application under Section 11 of the Act, the authority of the Chief Justice cannot be equated to that of a court so as to permit filing of subsequent applications in respect of the matters relating to the said arbitration before the Chief Justice or to the High Court concerned. In view of the aforesaid facts and circumstances, I am of the view that this petition whether under Article 226/227 of the Constitution of India or under Section 34 read with Section 42 of the Act is not maintainable before this court and the proper remedy available to the petitioner, if any, is to make proper application under Section 34 of the Act to the Court i.e. the Principal Court of original jurisdiction of the concern district. The petition lacks merit and is dismissed. _____________