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2018 DIGILAW 2533 (JHR)

Dkd Projects Pvt Ltd v. TRF Limited

2018-11-22

APARESH KUMAR SINGH

body2018
JUDGMENT Aparesh Kumar Singh, J. - Heard learned counsel for the parties. 2. Petitioner has sought extension of period of mandate of learned Arbitrator in terms of Section 29-A of the Arbitration and Conciliation Act, 1996 as amended, as the proceedings in the Arbitration Application No. 2 of 2016 before the learned Arbitrator could not be completed within the original time fixed and even after 6 months extended period agreed to between the parties. 3. Learned Arbitrator by order dated 20.02.2018 (Annexure-20) opined that suitable extension may be sought by both parties from the appropriate Court under Section 29-A of the Act of 1996, as amended. 4. A pertinent legal objection has been raised to the maintainability of the instant application before this Court relying up the meaning of the expression "Court" under Section 2(1) (e) of the Act of 1996. Reliance has been placed on the judgment rendered by the Apex Court in the case of State of West Bengal and others Vrs. Associated Contractors reported in , (2015) 1 SCC 32 where the meaning of the expression "Court" has been explained. The Court for the purpose of Section 2(1)(e) and Section 42 would mean Principal Civil Court of Original Jurisdiction in a district or High Court having original civil jurisdiction in the State and if both have jurisdiction then under the provisions of the Act of 1996, it is the superior most Court exercising original jurisdiction which has been chosen to adjudicate dispute arising out of arbitration agreement. 5. Learned counsel for the Respondent has also brought to the notice of the Court that this issue stands further affirmed by a Constitution Bench Judgment of the Apex Court rendered in the case of State of Jharkhand & others Vrs. Hindustan Construction Company Ltd. reported in , (2018) 2 SCC 602 . He has pointed out to the various implications or complications, which may result in case the jurisdiction is exercised by this Court, which is not the Principal Civil Court of Original Jurisdiction as contemplated under Section 2(1)(e) of the Act of 1996, as amended and not having original jurisdiction like the other Presidency Courts. Learned counsel for the respondent has submitted that now the appropriate competent Court would be the Commercial Court constituted in terms of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. 6. Learned counsel for the respondent has submitted that now the appropriate competent Court would be the Commercial Court constituted in terms of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. 6. Learned counsel for the petitioner has fervently pleaded that in similar circumstances extension has been granted by a coordinate Bench of this Court, for example in the case of M/s G.S. Malhotra Vrs. Damodar Valley Corporation & others in C.M.P. No. 243 of 2017 vide order dated 22.06.2018, Annexure-22 to the rejoinder. He submits that recourse to a fresh proceeding before the Principal Civil Court of Original Jurisdiction would entail further delay in adjudication of the main dispute. To obviate this hardship this Court may extend the mandate of learned Arbitrator for a suitable period in order to conclude the proceeding. 7. Considered the submission of learned counsel for the parties in the light of relevant material pleadings on record, provisions of the Act of 1996, as amended and the position of law as settled by the Apex Court in the case of State of West Bengal and others Vrs. Associated Contractors(supra) and State of Jharkhand & others Vrs. Hindustan Construction Company Ltd. (supra). Without doubt, in my humble opinion, this Court is not the Principal Civil Court of Original Jurisdiction within the meaning of the expression "Court" under section 2(1)(e) and Section 42 of the Act of 1996 to entertain such a request for extension of mandate of learned Arbitrator. Learned counsel for the respondent has rightly pointed out certain implications which can arise in case such a request is entertained in the light of specific provisions under Section 42 of the Act of 1996. It appears from the order passed in C.M.P. No. 243 of 2017 cited by learned counsel for the petitioner that provisions of law and the judgment of the Apex Court were not brought to the notice of the learned Court while passing the said order. 8. In that view of the matter, this Court consciously refrains from acceding to the request of the petitioner lest it may amount to error of jurisdiction. Petitioner is not remediless in the given situation. A slight hardship in approaching the competent Court should not be guiding reason to circumvent the position in law. As such, instant application is dismissed. 8. In that view of the matter, this Court consciously refrains from acceding to the request of the petitioner lest it may amount to error of jurisdiction. Petitioner is not remediless in the given situation. A slight hardship in approaching the competent Court should not be guiding reason to circumvent the position in law. As such, instant application is dismissed. However, petitioner is at liberty to approach the competent Court as defined under Section 2(1)(e) of the Act of 1996, as amended.