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2021 DIGILAW 323 (ORI)

Liladitya Deb v. Tara Ranjan Pattanaik

2021-07-23

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - This matter is taken up by video conferencing mode. 2. This writ petition involves a challenge to the order passed by the District Judge, Bhubaneswar vide Anenxure-3 in ARB(P) No.68 of 2018, dated 3.8.2019, allowing an application under Sub-Section (4) and (5) of Section 29-A of Arbitration and Conciliation Act, 1996. As it appears, learned District Judge, Bhubaneswar in allowing the arbitration petition finally extended the mandate of the Arbitrator for one year with effect from the date of judgment dated 3.8.2019. Even though the extension of the mandate of the Arbitrator has expired in the meantime, but however, since the mandate of the Arbitrator requires extension in the peculiar circumstance involving the case, the matter needs to be finally adjudicated. This Court thus proceeds to record the factual aspect involving the case as follows : Parties involved in a dispute regarding the admission of the opposite parties involved herein as a new partner to a farm, namely, M/s.Gangaya Supply Agency. For no amicable resolution of the dispute between the parties, opposite parties involved herein filed an application u/s.11(5) and 11(6) of the Arbitration and Conciliation Act, 1996 (herein after in short called as 'The Act, 1996') in the High Court and the same was registered as ARBP No.5 of 2015. This ARB(P) was finally disposed of with an order of appointment of Justice Sri D.P.Mohapatra, a former Judge of the Hon'ble Apex Court as sole Arbitrator to adjudicate the dispute between the parties. In the disposal of the proceeding on 15.9.2016, it appears after the appointment of the above Arbitrator, learned Arbitrator issued notice to the parties. Opposite Party herein on its appearance filed an application u/s.16 of the Act, 1996 questioning the jurisdiction of the learned Arbitrator. This Court here looking to the order passed by this Court in ARB(P) No.5 of 2015 on 15.9.2016 clearly observing therein that the appointment of the Arbitrator was made after considering the submissions of both the parties and as agreed to by learned counsel for the respective parties, thus there appears, there is grave doubt in the entertainability of the application under Section 16 of the Act keeping in view the specific observation of the High Court in the disposal of ARBP No.5 of 2015 particularly when there involve a consent order for appointment of Arbitrator. 3. 3. Be that as it may, for the arbitration proceeding could not be concluded during reasonable time in terms of Section 29A(i) of the Act, 1996, opposite party filed application under Sub-Sections 4 and 5 of Section 29-A of the Act for extension of time to conclude the arbitration proceeding by the learned Arbitrator. Application so moved to the learned District Judge, Bhubaneswar was registered as ARB(P) No.68 of 2018. The brief further discloses that the opposite party no.2 also filed ARBP No.534 of 2014, the District Judge, in disposal of this ARBP No.534 of 2014 on 20.03.2015 by appointing Hon'ble Mr. Justice M.M. Das (Retd.) as Arbitrator, which order of course did not materialize. 4. In the meantime ARB(P) No.68 of 2018 was taken up for final hearing. After considering the validity of service on the respondents therein and treating the same to have been accepted as sufficient, the above ARB(P) No.68 of 2018 was decided ex parte vide order at Annexure-3 dated 3.8.2019, in the ex parte disposal of the above ARB(P), learned District Judge allowing the application under Sub-Section (4) and (5) of Section 29-A of the Act, allowed the same thereby extending the mandate of Arbitrator for one year with effect from the date of the judgment. 5. Being aggrieved, it appears, the present petitioner brought W.P.(C) No.19068 of 2019 on the file of this Court and this writ petition being accepted, this Court while directing issuance of notice by its order dated 26.11.2019, as an interim measure directed stay operation of the judgment dated 03.08.2019 passed in ARB(P) No.68 of 2018 by the learned District Judge, Khurda and the matter was taken up for hearing on 30.06.2021. After hearing the argument of both learned senior counsels being assisted by associate counsel, the matter was reserved for judgment recording undertakings of both Senior Counsels who have desired to file their respective written notes of submission at least within ten days of matter reserved for judgment. Opposite party filed its written note of submission on 07.07.2021 upon service of copy of the same on opposite party on 07.07.2021 itself. Petitioner herein did not file further written note of submission however record of the case has a written note of submission of petitioner since 24.01.2020 and the same is taken into consideration. 6. Opposite party filed its written note of submission on 07.07.2021 upon service of copy of the same on opposite party on 07.07.2021 itself. Petitioner herein did not file further written note of submission however record of the case has a written note of submission of petitioner since 24.01.2020 and the same is taken into consideration. 6. Advancing his submission Mr.Mohanty, learned Senior Advocate for the petitioner challenges the order of the learned District Judge, impugned herein, in the following manner: i) For the ex parte disposal of the proceeding by the District Judge, the judgment becomes bad and needs to be set aside. ii) There has been no lawful service of notice. Mr. Mohanty, learned senior counsel therefore contended that there has been bad disposal of the proceeding by the learned District Judge and holding the present petitioner ex parte remains contrary to the materials available on record. iii) For the appointment of the Arbitrator being made at the instance of the High Court in disposal of application u/s.11 of the Act, 1996 in the matter of extension of mandate, jurisdiction lies within the High Court and not the District Judge involved herein. It is, therefore, urged that learned District Judge exercising his power under Section 29-A of the Act becomes illegal. The impugned order suffers on account of no jurisdiction of the District Judge and there is no overreaching of power by the District Judge . 7. Taking this Court to the definition of 'Court', Sri Mohanty, learned senior counsel submitted that 'Court' here means the institution which appointed Arbitrator. For Sri Mohanty, learned Senior Advocate, as the Orissa High Court has appointed the Arbitrator, therefore High Court has the authority to extend the mandate of the Arbitrator. On the above grounds, learned Senior Advocate for the petitioner also referred to certain decisions in the case of M/s. S.B.P. & Co. -Versus- M/s Patel Engineering Ltd. And Anr., (2005) 8 SCC 618 in the case of M/s. Mayavati Trading Pvt. Ltd. -Versus- Pradyuat Deb Burman, (2019) AIR SC 4284 and in the case of Jang Singh -Versus- Brij Lal and Others, (1966) AIR SC 1631 . Referring to above decisions, Sri Mohanty, learned senior counsel urged this Court for interfering in the impugned order and setting aside the same. Referring to above decisions, Sri Mohanty, learned senior counsel urged this Court for interfering in the impugned order and setting aside the same. On the scope of ex parte impugned judgment, Sri Mohanty also referred to certain judgments taken note in the petitioner's written note of submission and claimed, for the ex parte nature of impugned judgment, the same should also be interfered with. 8. To the contrary, Sri Jasobanta Das, learned Senior Advocate assisted by Mr. Rajeet Roy, Advocate for the opposite parties taking this Court to the definition 2(e) defining "Court" and the purpose behind Sub-Sections (4) and (5) of Section 29-A of the Act attempted to satisfy the Court that for the definition, the "Court" means the principal Civil Court of original jurisdiction in a district though includes the High Court(s) but High Court which has power of original civil jurisdiction for all purposes. Further on the allegation of the ex parte nature of order, Sri Das, learned senior counsel also taking into account the entire disclosures from the order-sheet, contended learned District Judge was fully satisfied with the service of notice and he has rightly declared the present petitioner ex parte and proceeded accordingly. Sri Das on the legal aspect involving meaning of "Court" and on the challenge to the jurisdiction of the District Court involving decision on an application u/s.29-A sub-section 4 (A) and (B) of the Act also took this Court to the decisions rendered in the case of M/s.Pandey and Co. Builders (P). Ltd.-Versus- State of Bihar and Another, (2007) 1 SCC 467 , Nimet Resources Inc and Another Versus- Essar Steels Limited, (2009) 17 SCC 313 , State of West Bengal and Others Versus-Associated Contractors, (2015) 1 SCC 32 , the decision of the Kerala High Court in the case of M/s. URC Construction Private td. Versus- M/s. BEML Ltd. OP(C) No.3256 of 2017(O), a decision of the Court dated 6.7.2018 in the case of KCS Private Limited Versus- Rosy Enterprises , W.P.(C) No.25344 of 2017, a decision involving Nilesh Ramanbhai Patel and Ors. Versus- M/s. BEML Ltd. OP(C) No.3256 of 2017(O), a decision of the Court dated 6.7.2018 in the case of KCS Private Limited Versus- Rosy Enterprises , W.P.(C) No.25344 of 2017, a decision involving Nilesh Ramanbhai Patel and Ors. Versus-Bhanubhai Ramanbhai Patel and Others, reported in MANU GJ/ 1549/2018, further a decision involving Frank Airways Pvt. Ltd. Versus- Airports Authority of India, reported in MANU/MP/ 2141 of 2019, a further decision in the case of Lots Shipping Company Limited Versus- Cochin Port Trust, reported in MANU/KE/1142/2020, a decision in the case of Amit Kumar Gupta Versus- Dipak Prasad, reported in MANU/ WB 0068/2021, in the case of Sara International Private Limited Versus- South Eastern Railways and Another, delivered by this Court in ARBP No.28/2020, in the case of Aligarh Muslim University and Others Versus- Mansoor Ali Khan, (2000) 7 SCC 529 , in the case of Jang Singh Versus- Brij Lal, (1964) 2 SCR 145 and lastly in the case of M/s. Automotive (India) Pvt. Ltd. - Versus- Paradeep Phosphates Limited in ARBA No.2/2017. 9. Reading through the aforesaid judgments vis- -vis the provision taken note hereinabove, Mr.Das, learned Senior counsel submitted that it is too late at this point of time to enter into controversy on the meaning of "Court" and further the arbitration proceeding already initiated on appointment of Arbitrator at the instance of the High Court, the Arbitration Proceeding requires to be effectively adjudicated. Petitioner herein raising technical objection, has a clear attempt to obstruct the Arbitration Proceeding and thereby obstructing an effective adjudication of the dispute between the parties, which if entertained, will lead to disastrous ending of the arbitration proceeding. Further, taking this Court to the dispute between the parties on the agreement involved herein, Mr. Das, learned senior counsel also contended that for an agreement between the parties, conditions therein being binding to both the parties to the agreement, it is undesirable on the part of the petitioner to challenge the jurisdiction of the District Judge at Bhubaneswar involving such decision. It is in the above background of the case, Mr. Das, learned senior counsel also contended that for an agreement between the parties, conditions therein being binding to both the parties to the agreement, it is undesirable on the part of the petitioner to challenge the jurisdiction of the District Judge at Bhubaneswar involving such decision. It is in the above background of the case, Mr. Das, learned Senior Advocate prayed this Court for disposal of the petition and to find objective achievement of the issue involved herein, this Court in dismissing the writ petition to modify the order of the District Judge facilitating effective completion of the arbitration proceeding involved herein, taking into account the loss of effect of benefit granted by the District Judge for the dispute here remaining un-disposed of with an interim direction. 10. In attending to the first objection on the question of deciding the matter ex parte, this Court on perusal of the order-sheet of the District Judge, Bhubaneswar find place in Annexure-2, finds the application under Sub-section 4 and 5 of Section 29-A of the Act, 1996 was presented on 14.9.2018. It was put up on 24.09.2018 with office note. On 24.9.2018 after clearing of the office note, the matter was heard and admitted with direction for issuing notice in both ways fixing the date to 10.10.2018. On 10.10.2018, again there was a direction to issue notice to opposite party fixing to 8.11.2018. On 8.11.2018 the matter was postponed to 17.1.2019 awaiting S.R. On 17.1.2019 again the matter was adjourned to 18.3.2019 awaiting S.R. On 18.3.2019, it was adjourned to 29.4.2019 awaiting SR and PA. On 29.4.2019 the matter was again adjourned to 19.6.2019 awaiting S.R. and P.A. On 19.6.2019, it was observed by the District Judge that out of two modes of notices, one comes back with the report 'door lock' and other one with a report affixing service 'on refusal'. Order dated 19.6.2019 reads as follows: "Advocate for the petitioner is present and files services affidavit against the O.P. Notices issued to the O.P. by both ways are back with a report "Door Lock" and another with a report "affixture service on refusal". Put up on 25.07.2019 for filing of fresh requisites and for further order." For the above observation clearly reflecting that one of the notice since affixed on refusal of notice, there was no occasion for filing of fresh requisites. 11. Put up on 25.07.2019 for filing of fresh requisites and for further order." For the above observation clearly reflecting that one of the notice since affixed on refusal of notice, there was no occasion for filing of fresh requisites. 11. This Court finds on 25.7.2019 on the next date, opposite party herein the petitioner therein files an affidavit on sufficiency of notice. For the stamp reporter observing of affixture service of notice even after the opposite party therein the petitioner herein was set ex parte however, the matter was postponed to 31.7.2019 for hearing. On 31.7.2019 after hearing the petitioner therein, the matter was concluded. This Court finds even though there was number of postings of the matter after 19.06.2019 and one of the notice was affixed on the door of the petitioner on refusal, there was no action taken by the opposite party therein, the present petitioner herein. This Court finds there is mere statement of the petitioner on the service taken to be sufficient and deciding the matter ex parte. There is no head and tail in the submission of counsel for the petitioner on this aspect at least to establish that there is no service of notice at all. In this situation, this Court taking into account the order-sheet of the trial court for clear recording therein accepts the same and decides the allegation of ex parte nature of disposal of the proceeding by the District Judge against the petitioner remain un-established. This Court here also observes for there is clear provision for extension of mandate and an Arbitrator being appointed on agreement of both parties, there cannot be any prejudice to the present petitioner for extension of mandate. 12. Now proceeding to the aspect of entertainability of the application by the District Judge and the challenge thereby, this Court finds in disposal of the ARBP No.5 of 2015 on 15.9.2016, this Court passed the following order: "Heard learned counsel for the parties. This is an application filed under Sections 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of Arbitrator. Considering the submissions made and as agreed to by the learned counsel or the parties, Shri Justice D.P. Mohapatra, a former Judge of the Supreme Court, is hereby appointed as the sole Arbitrator to adjudicate the dispute between the parties. Considering the submissions made and as agreed to by the learned counsel or the parties, Shri Justice D.P. Mohapatra, a former Judge of the Supreme Court, is hereby appointed as the sole Arbitrator to adjudicate the dispute between the parties. The venue of the arbitration shall be at the High Court of Orissa Arbitration Centre and the proceeding shall be conducted by the learned Arbitrator as per the High Court of Orissa Arbitration Centre (Arbitration Proceedings) Rule, 2014. It is needless to say that the fees of the learned Arbitrator shall be as per the Fourth Schedule of the Arbitration and Conciliation (Amendment) Act, 2015. It is open for the parties to raise all such plea as are available to them in law before the learned Arbitrator, who shall consider the same on its own merit and in accordance with law. ARBP is accordingly disposed of." From the above, it becomes clear that the arbitration proceeding initiated hereinabove was disposed of on consent of parties and there remains no doubt that there was merely an appointment of the Arbitrator in exercise of power under Section .11(5) and 11 (6) of the Act. So far as question of jurisdiction of the court is concerned, this Court finds from the cause title of the writ petition as well as the arbitration petition that the petitioner, Liladitya Deb contested the arbitration proceeding whose address is Niharika Apartment, Cuttack Puri Road and also at Sidhivihar, Jagamara both in Bhubaneswar in the district of Khruda. Present opposite party as well as the petitioner both in arbitration proceeding are also the resident of Tankapani Road, Bhubaneswar in the district of Khruda. In filing the writ petition, the petitioner, opposite party therein in the proceeding before the District Judge has also shown his address to be Sidhi Vihar, Jagamara, Bhubaneswar in the district Khurda. It is at this point of time, taking this Court to the agreement between the parties, copy of which being produced by the counsel for the opposite parties in the written note of submission at item-13, the deed of partnership involving the issue involved herein, it appears, at item -26, parties in agreement have agreed for their local limits of jurisdiction in the Court at Bhubaneswar. There is no doubt that the present dispute has an involvement of Deed of Partnership being presented by opposite party. There is no doubt that the present dispute has an involvement of Deed of Partnership being presented by opposite party. Now moving to definition part, this Court finds Section 2(e) of the Act, 1996 reads as follows : "Court" means- (i) in the case of an arbitration other than international commercial arbitration, 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; (ii) in the case of international commercial arbitration, 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, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court." 13. For the relevancy of section 29A of the Act, 1996 to the case at hand, this Court also takes note of Section 29A of the Act, which is reproduced herein below: "29A.Time limit for arbitral award.-[(1) The award shall be made within a period of twelve months from the date of the arbitral tribunal enters upon the reference. Explanation.- For the purpose of this sub-section, an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment. (2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree. (3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months. (3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months. (4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period: Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay. (5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court. (6) While extending the period referred to in sub-section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s)appointed under this section shall be deemed to have received the said evidence and material. (7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal. (8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties under this section. (9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party." 14. On reading of the provisions taken note hereinabove this Court finds, the provision of law has the support to the case of the Opposite Party. 15. On reading of the provisions taken note hereinabove this Court finds, the provision of law has the support to the case of the Opposite Party. 15. Taking into account the decisions available for consideration, this Court finds as follows: In the case of M/s. Mayavati Trading Pvt. Ltd. Versus-Pradyuat Deb Burman, (2019) AIR SC 4284 as submitted by Bar, it is observed that the said case is in the context of power under provision (6-A) of Section 11 of the Act, which not being a dispute involving the case at hand, there is no application of this case to the case at hand. Further, for consented JUDGMENT of this Court in ARBP No.5 of 2015 in the matter of approval of arbitration contingency in the case decided vide AIR 2019 (SC) 4284 does not exist here. The decision in the case of SBP & Co.-Versus- Patel Engineering Ltd. & Another, (2005) 8 SCC 618 since involved appointment of Arbitrator by Chief Justice or his designate is administrative or judicial or non-judicial. So, this case has also no application to the case at hand. Above view of the Hon'ble Apex Court has been of course changed by Apex Court later on, where it has been observed that such exercise is judicial exercise. In the case of Aligarh Muslim University & Others -Versus-Mansoor Ali Khan, (2000) 7 SCC 529 , this decision involves an issue on natural justice. For the observation of this Court in paragraphs 9 & 10 on the District Judge coming to hold that there is sufficiency of notice on the petitioner rightly, consequently this decision has no application to the case at hand. 16. Further, for the petitioner failing to establish that the District Judge, Bhubaneswar is not the Court in terms of decision at Section-2(e) of the Act, 1996. So as to undertake an exercise under Section 29 A of the Act, the decision relied on by the petitioner has no application to the case at hand. For the nature of dispute, extension of mandate of arbitration since very much warranted for no passing of award by Arbitrator within the time stipulation, there is bound to be an extension of mandate of Arbitrator to achieve a complete effect with the purpose of appointment of the Arbitrator, failure of which it may lead to multiplicity of litigation as there is no end to the dispute involving the parties. By such extension this Court finds, the petitioner is otherwise also not prejudiced. 17. On perusal of the decision in the case Jang Singh - Versus-Brij Lal and Others, (1966) AIR SC 1631 , as cited by the petitioner, this Court finds facts involved in the aforesaid case does not fit to the case at hand and as such the decision has absolutely no application to the case at hand. From the decisions this Court finds, considering the allegation as to whether appeal against arbitral award lies to Principal Civil Court of Original Jurisdiction in the district also include High Court which has even no exercise of original civil jurisdiction, the Hon'ble apex Court considering the definition of 2(1)(e) vide Pandey & Co. Builders (P.) Ltd. Vrs. State of Bihar and another, (2007) 1 SCC 467 getting into questions raised therein in para 9(i)(ii) and 24 to 26 observed as follows: "9. Two submissions were made on behalf of the appellant before us viz.: (i) Having regard to the definition of "Court" as contained in Section 2(1)(e) of the 1996 Act, the Court of the Principal Civil Court should be held to be not empowered to hear an appeal against an order of the Arbitral Tribunal insofar as if Section 37 of the 1996 Act is not construed, a second appeal being prohibited, no appeal shall ever lie against the order of the District Judge, Principal Civil Court before the High Court. (ii) As the order of the nominee of the Chief Justice of the Patna High Court under Section 11 of the 1996 Act is a judicial order, in view of the provisions contained in Section 42 thereof, a proceeding was maintainable only before the High Court." 24. Section 42 of the 1996 Act, to which our attention has been drawn by the learned counsel appearing for the appellant, in the instant case has no application. The said provision reads thus: "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 arbitrarl 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." 25. An order passed by a Chief Justice or his nominee under sub-section (6) of Section 11 of the 1996 Act may be a judicial order, as has been held by a seven-Judge Bench of this Court in SBP & Co. v. Patel Engg. Ltd. but the same does not take away the effect of the appellate jurisdiction to be exercised by a court under sub-section (2) of Section 37 of the 1996 Act. 26. Section 42 of the 1996 Act refers to applications and not to appeals. 18. Again involving a similar issue, the Hon'ble Apex Court in the case of State of West Bengal & Others versus-Associated Contractors, (2015) 1 SCC 32 in discussion through paragraphs - 11, 12, 13, 14 15, 16, 17 and 25(a) has come to observe that appointment of Arbitrator by Apex Court is done in exercise of its limited jurisdiction and for Section 2(i) (e) application touching mandates of Arbitrator shall be to Principal Civil Court of Original Jurisdiction keeping in view the broader principle enumerated in the Act, 1996. "11. It will be noticed that Section 42 is in almost the same terms as its predecessor section except that the words "in any reference" are substituted with the wider expression "with respect to an arbitration agreement". It will also be noticed that the expression "has been made in a court competent to entertain it", is no longer there in Section 42. These two changes are of some significance as will be pointed out later. Section 42 starts with a non obstante clause which does away with anything which may be inconsistent with the section either in Part I of the Arbitration Act, 1996 or in any other law for the time being in force. The expression "with respect to an arbitration agreement" widens the scope of Section 42 to include all matters which directly or indirectly pertain to an arbitration agreement. Applications made to courts which are before, during or after arbitral proceedings made under Part I of the Act are all covered by Section 42. But an essential ingredient of the section is that an application under Part I must be made in a court. 12. Part I of the Arbitration Act, 1996, contemplates various applications being made with respect to arbitration agreements. But an essential ingredient of the section is that an application under Part I must be made in a court. 12. Part I of the Arbitration Act, 1996, contemplates various applications being made with respect to arbitration agreements. For example, an application under Section 8 can be made before a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement. It is obvious that applications made under Section 8 need not be to courts, and for that reason alone, such applications would be outside the scope of Section 42. It was held in P. Anand Gajapathi Raju v. P.V.G. Raju, SCC at pp. 542-43, para 8 that applications under Section 8 would be outside the ken of Section 42. We respectfully agree, but for the reason that such applications are made before "judicial authorities" and not "courts" as defined. Also, a party who applies under Section 8 does not apply as dominus litis, but has to go wherever the 'action' may have been filed. Thus, an application under Section 8 is parasitical in nature-it has to be filed only before the judicial authority before whom a proceeding is filed by someone else. Further, the "judicial authority" may or may not be a court. And a court before which an action may be brought may not be a Principal Civil Court of Original Jurisdiction or a High Court exercising original jurisdiction. This brings us then to the definition of "court" under Section 2(1)(e) of the Act." 13. It will be noticed that whereas the earlier definition contained in the 1940 Act spoke of any civil court, the definition in the 1996 Act fixes "court" to be the Principal Civil Court of original jurisdiction in a district or the High Court in exercise of its ordinary original civil jurisdiction. Section 2(1)(e) further goes on to say that a court would not include any civil court of a grade inferior to such Principal Civil Court, or a Small Causes Court. 14. It will be noticed that the definition is an exhaustive one as it uses the expression "means and includes". It is settled law that such definitions are meant to be exhaustive in nature See P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., (1995) Supp2 SCC 348 at para 19. 15. 14. It will be noticed that the definition is an exhaustive one as it uses the expression "means and includes". It is settled law that such definitions are meant to be exhaustive in nature See P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., (1995) Supp2 SCC 348 at para 19. 15. A recent judgment of this Hon'ble Court reported in State of Maharastra Vs. Atlanta Limited, (2014) AIR SC 1093 has taken the view that Section 2(1)(e) contains a scheme different from that contained in Section 15 of the Code of Civil Procedure. Section 15 requires all suits to be filed in the lowest grade of court. This Hon'ble Court has construed Section 2(1)(e) and said that where a High Court exercises ordinary original civil jurisdiction over a 9 district, the High Court will have preference to the Principal Civil Court of original jurisdiction in that district. In that case, one of the parties moved an application under Section 34 before the District Judge, Thane. On the same day, the opposite party moved an application before the High Court of Bombay for setting aside some of the directions contained in the Award. In the circumstances, it was decided that the "Court" for the purpose of Section 42 would be the High Court and not the District Court. Several reasons were given for this. Firstly, the very inclusion of the High Court in the definition would be rendered nugatory if the above conclusion was not to be accepted, because the Principal Civil Court of original jurisdiction in a district is always a court lower in grade than the High Court, and such District Judge being lower in grade than the High Court would always exclude the High Court from adjudicating upon the matter. Secondly, the provisions of the Arbitration Act leave no room for any doubt that it is the superior most court exercising original jurisdiction which has been chosen to adjudicate disputes arising out of arbitration agreements. We respectfully concur with the reasoning contained in this judgment. 16. Similar is the position with regard to applications made under Section 11 of the Arbitration Act. In Rodemadan India Ltd. v. International Trade Expo Centre Ltd., (2006) 11 SCC 651 , a Designated Judge of this 10 Hon'ble Court following the seven Judge Bench in S.B.P. and Co. We respectfully concur with the reasoning contained in this judgment. 16. Similar is the position with regard to applications made under Section 11 of the Arbitration Act. In Rodemadan India Ltd. v. International Trade Expo Centre Ltd., (2006) 11 SCC 651 , a Designated Judge of this 10 Hon'ble Court following the seven Judge Bench in S.B.P. and Co. v. Patel Engineering Ltd. & Anr., (2005) 8 SCC 618 , held that instead of the court, the power to appoint arbitrators contained in Section 11 is conferred on the Chief Justice or his delegate. In fact, the seven Judge bench held: "13. It is common ground that the Act has adopted the UNCITRAL Model Law on International Commercial Arbitration. But at the same time, it has made some departures from the model law. Section 11 is in the place of Article 11 of the Model Law. The Model Law provides for the making of a request under Article 11 to "the court or other authority specified in Article 6 to take the necessary measure". The words in Section 11 of the Act, are "the Chief Justice or the person or institution designated by him". The fact that instead of the court, the powers are conferred on the Chief Justice, has to be appreciated in the context of the statute. '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. Obviously, the Parliament did not want to confer the power on the District Court, to entertain a request for appointing an arbitrator or for constituting an arbitral tribunal under Section 11 of the Act. It has to be noted that under Section 9 of the Act, the District Court or the High Court exercising original jurisdiction, has the power to make interim orders prior to, during or even post arbitration. It has also the power to entertain a challenge to the award that may ultimately be made. The framers of the statute must certainly be taken to have been conscious of the definition of 'court' in the Act. It has also the power to entertain a challenge to the award that may ultimately be made. The framers of the statute must certainly be taken to have been conscious of the definition of 'court' in the Act. It is easily possible to contemplate that they did not want the power under Section 11 to be conferred on the District Court or the High Court exercising original jurisdiction. The intention apparently was to confer the power on the highest judicial authority in the State and in the country, on Chief Justices of High Courts and on the Chief Justice of India. Such a provision is necessarily intended to add the greatest credibility to the arbitral process. The argument that the power thus conferred on the Chief Justice could not even be delegated to any other Judge of the High Court or of the Supreme Court, stands negatived only because of the power given to designate another. The intention of the legislature appears to be clear that it wanted to ensure that the power under Section 11(6) of the Act was exercised by the highest judicial authority in the concerned State or in the country. This is to ensure the utmost authority to the process of constituting the arbitral tribunal. 18. It is true that the power under Section 11(6) of the Act is not conferred on the Supreme Court or on the High Court, but it is conferred on the Chief Justice of India or the Chief Justice of the High Court. One possible reason for specifying the authority as the Chief Justice, could be that if it were merely the conferment of the power on the High Court, or the Supreme Court, the matter would be governed by the normal procedure of that Court, including the right of appeal and the Parliament obviously wanted to avoid that situation, since one of the objects was to restrict the interference by Courts in the arbitral process. Therefore, the power was conferred on the highest judicial authority in the country and in the State in their capacities as Chief Justices. They have been conferred the power or the right to pass an order contemplated by Section 11 of the Act. We have already seen that it is not possible to envisage that the power is conferred on the Chief Justice as persona designata. They have been conferred the power or the right to pass an order contemplated by Section 11 of the Act. We have already seen that it is not possible to envisage that the power is conferred on the Chief Justice as persona designata. Therefore, the fact that the power is conferred on the Chief Justice, and not on the court presided over by him is not sufficient to hold that the power thus conferred is merely an administrative power and is not a judicial power." It is obvious that Section 11 applications are not to be moved before the "court" as defined but before the Chief Justice either of the High Court or of 12 the Supreme Court, as the case may be, or their delegates. This is despite the fact that the Chief Justice or his delegate have now to decide judicially and not administratively. Again, Section 42 would not apply to applications made before the Chief Justice or his delegate for the simple reason that the Chief Justice or his delegate is not "court" as defined by Section 2(1)(e). The said view was reiterated somewhat differently in Pandey & Co. Builders (P) Ltd. v. State of Bihar & Anr., (2007) 1 SCC 467 at Paras 9, 23-26." 17. That the Chief Justice does not represent the High Court or Supreme Court as the case may be is also clear from Section 11(10): " 11.(10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section(5) or sub-section (6) to him." The scheme referred to in this subsection is a scheme by which the Chief Justice may provide for the procedure to be followed in cases dealt with by him under Section 11. This again shows that it is not the High Court or the Supreme Court rules that are to be followed but a separate set of rules made by the Chief Justice for the purposes of Section 11. Sub-section 12 of Section 11 reads as follows: 11.(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ''Chief Justice'' in those sub-sections shall be construed as a reference to the ''Chief Justice of India''. Sub-section 12 of Section 11 reads as follows: 11.(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ''Chief Justice'' in those sub-sections shall be construed as a reference to the ''Chief Justice of India''. (b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court." It is obvious that Section 11(12)(b) was necessitated in order that it be clear that the Chief Justice of "the High Court" will only be such Chief Justice within whose local limits the Principal Civil Court referred to in Section 2(1)(e) is situate and the Chief Justice of that High Court which is referred to in the inclusive part of the definition contained in Section 2(1) (e). This sub-section also does not in any manner make the Chief Justice or his designate "court" for the purpose of Section 42. Again, the decision of the Chief Justice or his designate, not being the decision of the Supreme Court or the High Court, as the case may be, has no precedential value being a decision of a judicial authority which is not a Court of Record. 25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are as follows: (a) Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as "court" for the purpose of Part-I of the Arbitration Act, 1996." 19. This Court in a decision dated 6.7.2018 in W.P.(C) No. 25344 of 2017 in the case of KCS Private Limited -Versus-Rosy Enterprises dealing with consideration of an application under Section 29 A of the Act vis- -vis definition of Court under Section-2 (i) (e) of the Act, particularly involving an appointment of Arbitrator by High Court in exercise of power under Section 11 of the Act, 1996, in deciding the matter in paragraph-8, 9 and 10 observed and held as follows: "08. A Three Judge Bench of the Hon'ble Supreme Court in the case of State of West Bengal and others (supra), wherein the question arose that which court has the jurisdiction to entertain and decide the application under Section 34 of the Act. Hon'ble Supreme Court in the case of State of West Bengal and others (supra) have held that "section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of Original Jurisdiction in the district or a High Court having original civil jurisdiction in the State, and no other court as "court" for the purpose of Part I of the Arbitration Act, 1996. The definition of "court" in Section 2(1)(e) in the 1996 Act fixes "court" to be the Principal Civil Court of Original Jurisdiction in the district or the High Court in exercise of its ordinary original civil jurisdiction. Section 2(1)(e) further goes on to say that a court would not include any civil court of a grade inferior to such Principal Civil Court, or a Small Cause Court. The definition is an exhaustive one as it uses the expression "means and includes". It is settled law that such definitions are meant to be exhaustive in nature". Hon'ble Supreme Court further held that "where a High Court exercises ordinary original civil jurisdiction over a district, the High Court will have preference to the Principal Civil Court of Original Jurisdiction in that district. Firstly, the very inclusion of the High Court in the definition would be rendered nugatory if the above conclusion was not to be accepted, because the Principal Civil Court of Original Jurisdiction in a district is always a court lower in grade than the High Court, and such District Judge being lower in grade than the High Court would always exclude the High Court from adjudicating upon the matter. Secondly, the provisions of the Arbitration Act leave no room for any doubt that it is the superior most court exercising original jurisdiction which has been chosen to adjudicate disputes arising out of arbitration agreements". It was a case of Calcutta High Court which exercised original civil jurisdiction. Hence, the Hon'ble Supreme Court have held that the High Court of Calcutta was held to be the Principal Civil Court of Original Jurisdiction. Thus, it is clear that while the High Courts of Patna and Kerala are not the 'Court', the Calcutta High Court is the 'Court' within the meaning of Section 2(1)(e) of the Act. 9. The High Court of Orissa does not exercise the original civil jurisdiction. Sub-Section (2) of Section 2 of the Orissa Civil Courts Act, 1984 provides that the court of the District Judge shal1 be the principal court of original civil jurisdiction in the district and the explanation provides that for the purpose of this sub-section the expression 'District Judge' shall not include an Additional District Judge. Thus, for the State of Odisha, the District Judge is the 'Court' within the definition of the aforesaid Section. 10. In that view of the matter, the learned District Judge, Sundargarh does have jurisdiction under Sub-Section (5) of Section 29A of the Act to extend the period of passing of the arbitral award. Instead of remanding the matter, as considerable time has been elapsed in the mean time, this Court think it proper to extend the time as prayed for by the petitioner and the opposite parties. It may be remembered that the petitioner and the opposite parties have filed a joint petition before the learned District Judge, Sundargarh and both the parties are agreed to extend the time frame as envisaged under Section 29A of the Act, I am inclined to extend the time for passing of the arbitral award. Secondly, it is stated that the matter of dispute is complicated and involves voluminous evidence. Hence, in the interest of justice, it is appropriate to extend the period of passing of arbitral award by another six months, which would start from the date of production of certified copy of this order before the Arbitral Tribunal." 20. This Court here takes into consideration the latest decision of the Hon'ble Apex Court in the case of Union of India & Ors. This Court here takes into consideration the latest decision of the Hon'ble Apex Court in the case of Union of India & Ors. Versus- G.S.Chatha Rice Mills & Another, (2021) 2 SCC 209 , in paragraph-57 the Hon'ble Apex Court has the following observation: "57. Mr. Nataraj is textually right when he emphasizes that Section 15(1) contains a reference to date and not time. But there are two responses to his line of approaching the issue. First, the legislature does not always say everything on the subject. When it enacts a law, every conceivable eventuality which may arise in the future may not be present to the mind of the lawmaker. Legislative silences create spaces for creativity. Between interstices of legislative spaces and silences, the law is shaped by the robust application of common sense. Second, regulatory governance is evolving in India as new technology replaces old and outmoded ways of functioning. The virtual world of electronic filings was not on the horizon when Parliament enacted the Customs Act in 1962. Yet Parliament has responded to the rapid changes which have been brought about by the adoption of technology in governance. In the provisions of Section 17 and Section 46, the impact of ICT-based governance has been recognized by the legislature in providing for the presentation of bills of entry in the electronic form on the customs automated EDI system. Precision, transparency and seamless administration are key features of a system which adopts technology in pursuit of efficiency. As we will explore in greater detail later in this judgment, technology has enabled both administrators and citizens to know precisely when an electronic record is uploaded. The considerations which Parliament had in its view in providing for crucial amendments to the statutory scheme by moving from manual to electronic forms of governance in the assessment of duties must not be ignored. Tax administration must leave behind the culture of an age in which the assessment of duty was wrought with delays, discretion, doubt and sometimes, the dubious. The interpretation of the Court must aid in establishing a system which ensures certainty for citizens, ease of application and efficiency of administration." 21. Tax administration must leave behind the culture of an age in which the assessment of duty was wrought with delays, discretion, doubt and sometimes, the dubious. The interpretation of the Court must aid in establishing a system which ensures certainty for citizens, ease of application and efficiency of administration." 21. For the support of law of land, for the clear application of provision at Section 2 (i) (e), Section 29 (A) of the Act and for the view of this Court indicated hereinabove, this Court while finding no strength in the submission of Mr. D. Mohanty, learned Senior Counsel, also finds, there is no infirmity in the impugned order vide Annexure-3. Thus while confirming the same, however keeping in view that the extension of mandate of Arbitration by one year time could not be operative for the parties engaged in the present dispute enjoying an order of stay of the impugned order continuing as of now, this Court while dismissing the writ petition directs for calculation of the period of one year as a matter of extension of mandate to start from the date of communication of a copy of the judgment of this Court on the learned Arbitrator. For loss of sufficient time in the meantime, parties are directed to bring the judgment of this Court to the notice of the learned Arbitrator enabling him to immediately proceed and conclude the proceeding within a period of one year. 22. In the result, the writ petition fails. No cost. 23. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.