appoints the arbitrator or issues directions or has
retained some control over the arbitrator by requiring
him to file the award in this Court, it cannot be regarded
as a court of first instance as that would go contrary to
the definition of the term ‘court’ as used in the dictionary
clause as well as in Section 31(4). Simply put, the
principle is not acceptable because this Court cannot
curtail the right of a litigant to prefer an appeal by stating
that the doors are open to this Court and to consider it
as if it is an original court. Original jurisdiction in this
Court has to be vested in law. Unless it is so vested and
the Court assumes, the court really scuttles the forum
that has been provided by the legislature to a litigant.
That apart, as we see, the said principle is also contrary
to what has been stated in Kumbha Mawji. It is worthy
to note that this Court may make a reference to an
arbitrator on consent but to hold it as a legal principle
that it can also entertain objections as the original court
will invite a fundamental fallacy pertaining to
jurisdiction.
58. In Surjit Singh Atwal (supra), a three-Judge
Bench had opined that applications under Section 8 and
under Section 20, though clearly applications anterior to
the reference, lead to a reference. Such applications are
undoubtedly applications “in the matter of a reference”
and may fall within the purview of Section 31(4) of the
Act even though these applications are made before any
reference has taken place. The purpose of referring to
the said authority is that the principle stated in Kumbha
Mawji (supra) has been elaborated in Surjit Singh
Atwal (supra). It is to be borne in mind that the Court
that has jurisdiction to entertain the first application is
determinative by the fact as to which Court has the
jurisdiction and retains the jurisdiction. In this regard,
an example may be cited. When arbitrator is not
appointed under the Act and the matter is challenged
before the High Court or, for that matter, the Supreme
Court and, eventually, an arbitrator is appointed and
some directions are issued, it will be inappropriate and
inapposite to say that the superior court has the
jurisdiction to deal with the objections filed under
Sections 30 and 33 of the Act. The jurisdiction of a Court
conferred under a statute cannot be allowed to shift or
become flexible because of a superior court’s interference
in the matter in a different manner.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1093 OF 2006
The State of Jharkhand & Ors. V M/s Hindustan Construction Co. Ltd.
Dated:December 14, 2017
A two-Judge Bench while hearing the present
appeal found that there is difference of opinion in relation
to the entertainability of an application by this Court for
making an award passed by the arbitral tribunal, when it
retains seisin over arbitral proceeding, as Rule of the
Court and, therefore, referred the matter to the larger
Bench for decision on the following question:-2
“Whether this Court can entertain an application
for making the award as Rule of the Court, even
if it retains seisin over arbitral proceedings?”
2. The narration of the facts in detail is not necessary
to answer the reference. Suffice it to state that as
disputes had arisen between the parties, the matter was
referred to an arbitrator for adjudication of the disputes
and during the said period, the respondent had filed a
suit in the High Court of Bombay seeking an interim
injunction restraining the State from encashing the bank
guarantee. As the time for making the award and the
period of extension had expired, the proceeding for
arbitration was abandoned. The State filed a money suit
before the learned Sub-Judge I, Saraikella for realization
of certain sum with interest. The respondent after
appearing in the suit filed an application under Section
34 of the Arbitration Act, 1940 (for short, “the Act”) for
stay of the suit. The said prayer was contested and the
learned Sub-Judge allowed the application filed by the
respondent. However, regard being had to the quantum
of the claim, the Sub-Judge expressed the view that it
was desirable that the parties should settle their disputes 3
in an arbitration proceeding. Against the said order, an
appeal was preferred under Section 39 of the Act before
the High Court which dismissed the appeal vide order
dated 06.08.2002.
3. Being aggrieved, the State of Jharkhand preferred
the appeal which was disposed of by this Court vide
order dated 10.01.2013. It is worthy to mention here
that the learned counsel appearing for the parties agreed
for the following order:-
“(i) The claim made by the respondent on
January 7, 1994 pursuant to the contract dated
April 25, 1989 between the parties which was
earlier referred to the Arbitral Tribunal which
commenced proceedings on February 15, 1995
and which had remained inconclusive is referred
for adjudication to Hon’ble Mr. Justice S.B.
Sinha, retired Judge of this Court.
(ii) The claim made by the appellant against the
respondent in Money Suit No.4 of 1996 – State of
Jharkhand and others vs. M/s. Hindustan
Construction Company Limited filed by the
appellant on April 10, 1996 in the court of SubJudge,
Saraikella, Jharkhand is also referred for
adjudication to Hon’ble Mr. Justice S.B. Sinha,
retired Judge of this Court.
(iii) The terms and conditions shall be settled by
the learned Arbitrator in consultation with the
parties.
(iv) The parties shall appear before the learned
Arbitrator on February 5, 2013. We request the 4
learned Arbitrator to conclude the aforesaid
arbitration proceedings expeditiously and further
observe that the award shall be filed before this
Court.”
[Underlining is ours]
4. After reproducing settlement, the Court recorded
thus:-
“We record and accept the statement of the
learned senior counsel for the parties that
learned Arbitrator may be requested to decide the
claim on merits. We observe accordingly.”
5. Learned arbitrator concluded the arbitration
proceedings and passed the award on 16.10.2015 and
filed the same before this Court. The appellants
challenged the said award by filing its objections before
the Civil Court. Per contra, the respondent filed an
affidavit dated 16.06.2016 requesting this Court to
pronounce the judgment in terms of the award.
6. It was contended before the two-Judge Bench that
when this Court had directed to file the award in this
Court, an application for making the award Rule of the
Court is to be filed in this Court, for this Court alone has
the jurisdiction to pronounce the judgment in terms of
the award. In this regard, the decisions in Bharat 5
Coking Coal Limited v. Annapurna Construction1
and State of West Bengal and others v. Associated
Contractors2 were placed reliance upon. Resisting the
said submissions, it was urged by the appellant-State
that if the Court decides the objections to the award, the
party will lose its right of appeal. It was also contended
that by referring the matter to arbitration this Court had
not really retained control of the proceedings of the
arbitrator. To bolster the said submissions, heavy
reliance was placed on State of Rajasthan v. Nav
Bharat Construction Company (2)3 .
7. The Court noted the decision in Nav Bharat
Construction Company (supra) which had followed the
judgment in Mcdermott International INC. v. Burn
Standard Co. Ltd. and others4 and further apprised
itself of the principles enunciated in Bharat Coking
Coal Limited (supra) which has held that right to appeal
is a valuable right and unless there exists cogent
reasons, a litigant should not be deprived of the same.
1
(2008) 6 SCC 732
2
(2015) 1 SCC 32
3
(2010) 2 SCC 182
4
(2005) 10 SCC 3536
The Division Bench referred to the principle enunciated
in Associated Contractors (supra) wherein the threeJudge
Bench had opined that this Court cannot be
considered to be a Court within the meaning of Section
2(i)(e) of the Arbitration and Conciliation Act, 1996 (for
brevity, ‘the 1996 Act’). The referral judgment noted the
view taken in State of Madhya Pradesh v. Saith and
Skelton (P) Ltd.5 and Guru Nanak Foundation v.
Rattan Singh and Sons6 wherein it has been held that
when an arbitrator is appointed by this Court and further
directions are issued, it retains seisin over the arbitration
proceedings and in such circumstances, the Supreme
Court is the only court for the purposes of Section 2(c) of
Act.
8. The two-Judge Bench perceived the difference of
opinion with regard to the entertainability of the
application before this Court and directed the matter to
be placed before the Chief Justice of India for appropriate
orders. That is how the matter has been placed before us.
5
(1972) 1 SCC 702
6
(1981) 4 SCC 6347
9. We have heard Mr. Ajit Kumar Sinha, learned senior
counsel appearing for the appellants and Mr. K.V.
Viswanathan, learned senior counsel for the respondent.
10. It is submitted by Mr. Sinha, learned senior counsel
appearing for the appellant-State, that the view
expressed in Guru Nanak Foundation (supra) does not
state the law correctly and it will be inappropriate to
annul the right of appeal of the appellants solely on the
ground that this Court, on the consent of the parties, had
accepted that the award shall be filed before this Court
and, therefore, this Court alone has the jurisdiction to
decide the objections for making the award Rule of the
Court. According to Mr. Sinha, the definition of the Court
under Section 2(c) of the Act has to be appropriately
appreciated and on proper construction of the meaning of
the word “Court”, it cannot be said to include the
Supreme Court. It is additionally propounded by
Mr. Sinha that under the scheme of the Act, the
appellants are entitled under law to file the objections
before the Sub-Judge whose order is assailable in an
appeal before the High Court under Section 39 of the Act, 8
and, if this Court becomes the original Court for dealing
with the objection/s filed by the parties, then the right of
appeal would stand nullified without any intervention of
the legislature. In this context, reliance has been placed
on State of Karnataka v. Union of India and
another7, A.R. Antulay v. R.S. Nayak and another8
and Garikapati Veeraya v. N. Subbiah Choudhry and
others9. Mr. Sinha, learned senior counsel, has urged
that the position has been made clear in Associated
Contractors (supra) wherein the Court has expressed
the view that the principles enunciated in Saith and
Skelton (supra) and Guru Nanak Foundation (supra)
are open to doubt and on dealing with the decisions in
entirety, it would be clear that it has laid down the
principle that the term ‘Court’ cannot include the
Supreme Court.
11. Mr. Viswanathan, learned senior counsel appearing
for the respondent, in his turn, contends that Section 2(c)
of the Act defines Court and the definition when read in
7
(1977) 4 SCC 608
8
(1988) 2 SCC 602
9 1957 SCR 488 : AIR 1957 SC 5409
an apposite manner shows that the word “Court” can be
assigned a different meaning depending on the context.
For the said purpose, he has commended us to the
authorities in Commissioner of Gift Tax, Madras v.
N.S. Getty Chettiar10, Commissioner of Sales Tax,
State of Gujarat v. Union Medical Agency11, Saith &
Skelton (supra) and Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and others12. It is
urged by the learned senior counsel for the respondent
that Section 14(2) of the Act indicates that there may be
a case where the Court itself can direct the award to be
filed in the court and once the superior court has
retained control and passed a specific direction to file an
award in terms of Section 14(2) before the Court, then all
other courts cease to have jurisdiction for determination
of the controversy. Emphasizing on the hierarchical
structure, he contends that judicial discipline and
respect has to prevail and, therefore, no proceeding can
be initiated in any court other than the superior court. It
is his submission that when this Court retains control
10 (1971) 2 SCC 741
11 (1981) 1 SCC 51
12 (1998) 8 SCC 1 10
over the arbitration proceedings, any proceeding flowing
from the Act has to be initiated before this Court. In this
regard, he has drawn inspiration from few passages in
Saith & Skelton (supra) and Guru Nanak Foundation
(supra). According to him, the submission advanced on
behalf of the appellants that they would lose the right of
appeal has been squarely rejected in Guru Nanak
Foundation (supra) and there is no necessity to dislodge
the said principle.
12. Drawing our attention to Section 31(4) of the Act,
Mr. Viswanathan would contend that the said provision
is intended to deal only with those situations where even
after compliance with the first three sub-sections of
Section 31, there may be two or more courts wherein
proceedings under those sub-sections may be taken. But
it has no application in those cases where a
superior/higher court has retained control and passed a
direction to file the award in that court. The concept of
choice as enjoined in Section 31(4) has to be understood
as courts of equal status. Learned senior counsel would
further submit that the control of superior courts has to 11
be given primacy. To sustain the said proposition, he
has placed reliance upon Kumbha Mawji v. Dominion
of India (Now the Union of India)13. He has laid stress
that once the superior court retains control which is
permissible under the Act, there is no further right to
appeal and, therefore, the submission that the right to
appeal is extinguished is without merit. To bolster the
aforesaid proponement, he has drawn immense support
from the decision in Punjab State Electricity Board
and others v. Ludhiana Steels Private Ltd.14.
Commenting on Associated Contractors (supra), it is
contended by Mr. Viswanathan, that the said authority
overlooks the main reason in Saith & Skelton (supra)
and Guru Nanak Foundation (supra) and the principal
reason in the said authority relates to the definition of
“Court” under Section 2(1)(e) of the 1996 Act and that
makes the decision rendered therein distinguishable. It
has also been urged by him that the decisions which
have been referred to in Associated Contractors (supra)
are factually different and when the factual backdrop
13 1953 SCR 878 : AIR 1953 SC 313
14 (1993) 1 SCC 20512
differs, the Court has to look at the ratio in the context of
the case. He has also urged that the authorities relied on
by the learned counsel for the appellants are not
relatable to the controversy at hand because in the said
cases the court had not retained control of the
proceedings with it.
13. To appreciate the controversy, it is crucial to
appreciate the scheme of the Act. Section 2 is the
dictionary clause. It commences with the words “unless
there is anything repugnant in the subject or
context”. The contention before us is that the use of
such words clearly evinces that the term “Court” can be
assigned a different meaning depending on the context.
In Union Medical Agency (supra), a three-Judge Bench,
while dealing with the concept of statutory interpretation
when the subject matter or context is different, has held:-
“14. It is a well-settled principle that when a
word or phrase has been defined in the
interpretation clause, prima facie that
definition governs whenever that word or
phrase is used in the body of the statute. But
where the context makes the definition clause
inapplicable, a defined word when used in the
body of the statute may have to be given a 13
meaning different from that contained in the
interpretation clause; all definitions given in
an interpretation clause are, therefore,
normally enacted subject to the usual
qualification — “unless there is anything
repugnant in the subject or context”, or
“unless the context otherwise requires”. Even
in the absence of an express qualification to
that effect such a qualification is always
implied.”
14. In the case of Saith and Skelton (supra), the Court
was dealing with Section 2(c) and Section 14(2) of the
Act and in that context, the three-Judge Bench, keeping
in view the language employed in the beginning of
Section 2, opined:-
“18. … Therefore the expression “Court” will
have to be understood as defined in Section
2(c) of the Act, only if there is nothing
repugnant in the subject or context. It is in
that light that the expression “Court”
occurring in Section 14(2) of the Act will have
to be understood and interpreted. ...”
15. In the aforesaid case, the Court had appointed the
arbitrator on the consent of the parties and had directed
him “to make his award”. That apart, no further direction
was given in the said case. The arbitrator after passing
the award had filed the same before this Court and in
that context, the Court held:-14
“18. … Surely the law contemplates further
steps to be taken after the Award has been
made, and quite naturally the forum for taking
the further action is only this Court. There
was also direction to the effect that the parties
are at liberty to apply for extension of time for
making the Award. In the absence of any other
court having been invested with such
jurisdiction by the order, the only conclusion
that is possible is that such a request must be
made only to the court which passed that
order, namely, this Court.”
And again:-
“19. That this Court retained complete control
over the arbitration proceedings is made clear
by its orders, dated February 1, 1971 and
April 30, 1971. On the former date, after
hearing counsel for both the parties, this
Court gave direction that the record of the
arbitration proceedings be called for and
delivered to the Sole Arbitrator Mr V.S. Desai.
On the latter date, again, after hearing the
counsel, this Court extended the time for
making the Award by four months and further
permitted the arbitrator to hold the arbitration
proceedings at Bombay. The nature of the
order passed on January 29, 1971, and the
subsequent proceedings, referred to above,
clearly show that this Court retained full
control over the arbitration proceedings.”
16. Thereafter, the three-Judge Bench referred to the
decision in Ct. A. Ct. Nachiappa Chettiar and others
v. Ct. A. Ct. Subramaniam Chettiar15 and placing
15 (1960) 2 SCR 209 : AIR 1960 SC 30715
reliance on the same, expressed the view that this Court
is the “Court” under Section 14(2) of the Act where the
arbitration award could be validly filed.
17. In Guru Nanak Foundation (supra) case, since
differences arose between the parties, an application was
filed before the High Court under Section 20 of the Act
which appointed retired Chief Engineer as the sole
arbitrator to whom the reference was made. When the
reference was pending, an application was moved before
the Delhi High Court for removal of the arbitrator and the
High Court thought it appropriate to reject the
application. Guru Nanak Foundation assailed the
soundness of the order passed by the High Court and
this Court removed the arbitrator and appointed another
arbitrator and directed the arbitrator to commence the
proceedings within 15 days and to dispose of the same as
expeditiously as possible. After the newly appointed
arbitrator commenced the proceedings, it directed the
parties to file their pleadings stating that he had desired
to begin the arbitration proceedings afresh which
impliedly meant that the pleadings filed before the former 16
arbitrator and the evidence led before him were to be
ignored. That led the first respondent therein to move an
application before this Court seeking the relief that the
learned arbitrator should commence the arbitration
proceedings from the stage where it was left by the
previous arbitrator. After hearing both the parties, the
Court directed thus:-
“CMP No. 1088 of 1977: We have heard
counsel on both sides. It is absolutely plain
that the new arbitrator in tune with the spirit
of the Order passed by this Court should
proceed with speed to conclude the arbitration
proceedings. In the earlier directions by this
Court it had been stated that the proceedings
should commence within 15 days and that the
arbitrator ‘shall try to dispose of the same as
expeditiously as possible’. We direct the
arbitrator, bearing in mind the concurrence of
the counsel on both sides, that he shall
conclude the proceedings within four months
from today.
A grievance is made that the arbitrator is
calling for fresh pleadings which may perhaps
be otiose since pleadings have already been
filed by both sides before the earlier arbitrator
Mr Nanda. If any supplementary statement is
to be filed it is certainly open to the parties to
persuade the arbitrator to receive them in one
week from today. The arbitrator will remember
that already some evidence has been collected
and he is only to consider and conclude. With
this directive we dispose of the application.”17
18. After the award was passed, the arbitrator
approached the Registry of this Court for filing of the
award and he was advised by an officer of this Court that
the award should be filed before the Delhi High Court.
The arbitrator filed the award in Delhi High Court. At
that juncture, the respondent therein filed the petition
seeking a declaration that the award was required to be
filed before the Supreme Court in view of the provisions
contained in Section 14(2) read with Section 31(4) of the
Act. It was contended before the High Court that as the
reference was made to the arbitrator by the Supreme
Court and further directions were given, this Court was
in seisin of the matter and it alone had the jurisdiction to
entertain the award in view of the provisions of Section
31(4) of the Act. The matter came to be challenged before
this Court and the proceedings before the High Court
were stayed.
19. The two-Judge Bench, after narrating the facts,
posed the following question:-
“The narrow question in this case therefore is:
in view of the circumstances herein delineated,
which is the court which would have 18
jurisdiction to entertain the Award; in other
words which is the court having jurisdiction in
which the Award should be filed by the
arbitrator?”
20. Analysing the meaning of the expression “Court” as
engrafted under Section 2(c) and keeping in view the
words occurring in the beginning of Section 2, the Court
stated thus:-
“13. The dictionary meaning of expression
“court” in Section 2(c) has to be applied
wherever that word occurs in the Act, but with
this limitation that if there is anything
repugnant in the subject or context, the
dictionary meaning may not be applied to the
expression “court”. Assuming that there is
nothing repugnant in the subject or context
the expression “court” in the Act would mean
that civil court which would have jurisdiction
to decide the question forming the subjectmatter
of the reference if the same had been
the subject-matter of a suit but does not
include a Small Cause Court though it is a
civil court except for the arbitration
proceedings under Section 21. Section 14,
sub-section (2) provides for filing of the Award
in the court and in view of the definition of the
expression “court” the arbitrator will have to
file the Award in that court which would have
jurisdiction to entertain the suit forming the
subject-matter of reference.”
21. As the discussion in the judgment would show, the
Court observed that there was some controversy between
the High Courts whether the expression “Court” would 19
comprehend appellate court in which the award can be
filed but it was finally resolved in the decision in CT. A.
CT. Nachiappa Chettiar (supra) which held that the
expressions “suit” and “Court” in Section 21 of the Act
would also comprehend proceedings in “appeal” and
“appellate court” respectively because the expression
“Court” in Section 21 includes the appellate court
proceedings which are generally recognized as
continuation of the suit, and the word “suit” would
include such appellate proceedings.
22. After so stating, Guru Nanak Foundation (supra)
proceeded to advert to Section 31(4) of the Act and, in
that context, held that the non-obstante clause excludes
anything anywhere contained in the whole Act or in any
other law for the time being in force if it is contrary to or
inconsistent with the substantive provision contained in
sub-section (4). It further ruled that to that extent it
carves out an exception to the general question of
jurisdiction of the court in which Award may be filed
elsewhere provided in the Act in respect of the
proceedings referred to in sub-section (4). The provision 20
contained in sub-section (4) will have an overriding effect
in relation to the filing of the Award if the conditions
therein prescribed are satisfied. If those conditions are
satisfied, the court other than the one envisaged in
Section 14(2) or Section 31(1) will be the court in which
Award will have to be filed. Elaborating the effect of the
non-obstante clause in sub-section (4) of Section 31, it
has been opined that Sub-section (4) invests exclusive
jurisdiction in the court, to which an application has
been made in any reference and that court is competent
to entertain as the court having jurisdiction over the
arbitration proceedings and all subsequent applications
arising out of reference and the arbitration proceedings
shall have to be made in that court and in no other
court. Therefore, sub-section (4) not only confers
exclusive jurisdiction on the court to which an
application is made in any reference but simultaneously
ousts the jurisdiction of any other court which may as
well have jurisdiction in this behalf. Illustrating further,
the Court held that if an Award was required to be filed
under Section 14(2) read with Section 31(1) in any 21
particular court as being the court in which a suit
touching the subject-matter of Award would have been
required to be filed, but if any application in the
reference under the Act has been filed in some other
court which was competent to entertain that application,
then to the exclusion of the first mentioned court the
latter court alone, in view of the overriding effect of the
provision contained in Section 31(4), will have
jurisdiction to entertain the Award and the Award will
have to be filed in that court alone and no other court
will have jurisdiction to entertain the same.
23. After so stating, the Court observed that the
provision contained in sub-section (2) of Section 14 will
neither be rendered otiose nor stand in disharmony with
the construction that has been placed by it on subsection
(4) of Section 31 because the expression “Court”
as defined in Section 2(c) needs to be adhered to unless
there is anything repugnant in the subject or context in
which it is used. It is further opined that on a pure
grammatical construction as well as a harmonious and
overall view of the various provisions contained in the 22
Act, it is quite clear that ordinarily the Court will have
jurisdiction to deal with the questions arising under the
Act, except the one in Chapter IV in which the suit with
regard to the dispute involved in the arbitration would be
required to be filed under the provisions of the Code of
Civil Procedure. Elucidating further, the two-Judge
Bench ruled that when an application is made in any
reference to a court competent to entertain it, that court
will have jurisdiction over the arbitration proceeding and
all subsequent applications arising out of the reference
and the arbitration proceedings shall be made to that
court alone and in no other court. Analysing the facts,
the learned Judges expressed that this Court had
complete control over the proceedings before the
arbitrator. In view of the fact that the reference was
made by this Court and further directions were issued
with regard to the manner and method of conducting the
arbitrations proceedings and fixing the time for
completion of the same, this Court alone had the
jurisdiction to entertain the award. The two-Judge Bench
placed reliance on Saith and Skelton (supra) and 23
expressed that both on principle and on authority, this
Court alone had the jurisdiction for filing of the award.
24. It is necessary to state here that on behalf of the
appellant, reliance was placed on Kumbha Mawji (supra)
to bolster the stand that Section 31(4) is not confined to
application made after the reference is made or during
the pendency of the reference but may take within its
sweep an application made earlier to the reference being
made and if such an application has been made to a
court, that court would have the jurisdiction to entertain
such an application. Explaining Kumbha Mawji’s case,
the two-Judge Bench stated that in the said case a
contention was raised before this Court that Section
31(4) is merely confined to applications during the course
of pendency of a reference to arbitration and this Court
after analysing the scheme of Section 31, held that there
is no conceivable reason why the legislature should have
intended to confine the operation of sub-section (4) only
to applications made during the pendency of an
arbitration, if as is contended, the phrase “in any
reference” is to be taken as meaning “in the course of a 24
reference”. Ultimately this Court held that the phrase “in
any reference” used in sub-section (4) of Section 31
means “in the course of any reference”, and concluded
that Section 31, sub-section (4) would vest exclusive
jurisdiction in the court in which an application for the
filing of an Award has been first made under Section 14
of the Act. After so stating, the learned Judges proceeded
to observe:-
“22. … We fail to see how this decision would
help in answering the contention canvassed on
behalf of the appellant. In fact the decision in
Kumbha Mawji case was further explained by this
Court in Union of India v. Surjeet Singh Atwal16.
The contention in the latter case was whether an
application under Section 34 of the Act for stay of
the suit was an application made in a reference
within the meaning of Section 31(4) of the Act
and, therefore, subsequent application can only
be made to that court in which stay of the suit
was prayed for. In support of this contention
reliance was placed on Kumbha Mawji case
urging that the expression “in any reference”
under Section 31(4) of the Act is comprehensive
enough to cover application first made after the
arbitration is completed and a final Award made
and the sub-section is not confined to
applications made during the pendency of the
arbitration proceedings. Negativing this
contention this Court held that accepting the
wider meaning given to the phrase “in any
reference” as implying “in the course of a
reference” an application under Section 34 is not
16 1969 (2) SCC 21125
an application in a reference within the meaning
of the phrase as elaborated in Kumbha Mawji
case. The Court took notice of various sections
under which an application can be made before a
reference has been made. Therefore, the decision
in Kumbha Mawji case would not mean that a
proceeding earlier to the reference in a court
would clothe that court with such jurisdiction as
to render the provision contained in Section 31(4)
otiose.”
The aforesaid analysis only shows that the twoJudge
Bench expressed the opinion that the principles
stated in Kumbha Mawji would not help in answering
the contention canvassed on behalf of the appellant
therein and further stated that the said authority would
not mean that a proceeding earlier to the reference in a
court would clothe that court with such jurisdiction as to
render the provision contained in Section 31(4) otiose.
25. A further contention was also advanced that if this
Court were to arrogate the jurisdiction to itself by putting
such a construction of sub-section (4) of Section 31, it
would deprive the grieved party of its valuable right to
prefer an appeal and approach the Court under Article
136 of the Constitution. Repelling the said submission,
the Court referred to Saith & Skelton (P) Ltd. case and 26
opined that in an identical situation this Court held that
the award has to be filed in this Court alone which would
certainly negative an opportunity to appeal because this
is the final court. The two-Judge Bench further opined
that conceding as held by this Court in Garikapati
Veeraya (supra) that the right of appeal is a vested right
and such a right to enter the superior court accrues to
the litigant and exists as on and from the date the lis
commences, right is not denied or defeated because the
highest court to which one can come by way of appeal
will entertain all contentions that may have to be
canvassed on behalf of the appellant. Thereafter it has
been stated:-
“23. ... The door of this Court is not being closed
to the appellant. In fact the door is being held
wide ajar for him to raise all contentions which
one can raise in a proceeding in an originating
summons. Therefore, we see no merit in this
contention and it must be rejected.”
26. We have extracted the aforesaid passage to highlight
how the principle laid down in Kumbha Mawji has been
distinguished in the case of Guru Nanak Foundation
(supra). To appreciate the reasoning, it is necessary to 27
analyse the facts and the principles stated in Kumbha
Mawji (supra). In the said case, the Court stated that the
three questions which arose for consideration were:-
“(1) Whether the appellant had the authority
of the umpire to file the awards on his behalf
into court in terms of Section 14(2) of the
Arbitration Act;
(2) Whether in view of sub-section (3) of
Section 31 of the Act can it be said that the
awards were filed in the Calcutta High Court
earlier than in the Gauhati court; and
(3) Whether the scope of Section 31 subsection
(4) of the Act is limited to applications
under the Act during the pendency of the
arbitration proceedings only.”
27. So far as the first question is concerned, we need
not dwell upon the same. What is important to note is
how the Court dealt with the third question and for the
said purpose, it is necessary to apprise ourselves about
the facts involved in the said case. The respondent in the
said case had filed an application under Section 14(2) of
the Act before the Subordinate Court of Gauhati in
Assam to the effect that the umpire be directed to file
both the awards in the Court. A week after the
respondent made the first application in the Gauhati 28
Court, the solicitors for the appellant therein sent a letter
to the Registrar of the High Court of Calcutta with the
two awards and requested for issue of notices thereon.
After some correspondence between the Deputy Registrar
and solicitors, a direction was issued to serve the awards
on the parties and fix a date for determination upon the
said awards by the Commercial Judge of the Court. The
three-Judge Bench took note of the fact that in respect of
the same awards, proceedings were initiated purporting
to be one under Section 14(2) of the Act simultaneously
filed in the Subordinate Court of Gauhati in Assam as
well as on the original side of the High Court of Calcutta.
The contention was raised by the respondent objecting to
the jurisdiction of the Calcutta Court and to the validity
of the awards. Learned single Judge of the High Court
overruled the objection raised by the respondent and
passed judgment on the awards. On appeal therefrom to
the Division Bench, the learned Judges differed with the
judgment of the learned single Judge by opining that
there had been no proper application under Section 14(2)
of the Act before the High Court of Calcutta and,29
consequently, it had no jurisdiction to deal with the
matter.
28. While dealing with the appeals, this Court opined
that under Section 31(1) of the Act an award may be filed
in any court having jurisdiction in the matter to which
the reference relates and in the said case, reference arose
out of a contract which was entered into at Calcutta and
had to be performed in Assam and, therefore, Gauhati
Court as well as Calcutta Court admittedly had
jurisdiction over the subject matter of the reference. It
took note of the submission raised by the Union of India
that an application to Gauhati Court was made earlier
than the application preferred to Calcutta High Court
and, therefore, the Calcutta High Court had no
jurisdiction. Learned single Judge was of the opinion
that Section 31(4) related only to applications made
during the pendency of a reference to arbitration and not
to applications made subsequent to the making of an
award. According to the learned single Judge, irrespective
of applications for filing an award, the exclusive
jurisdiction was determined with reference to the 30
question as to which was the competent court in which
the award was, in fact, first filed under sub-section (2) of
Section 14, (as distinct from when the application for the
filing of the award was first presented). In this
background, interpreting Section 31(3) of the Act, the
Court held that the Gauhati Court alone had the
jurisdiction. In respect of the third question which
pertains to sub-section (4) of Section 31 of the Act, the
Court, after reproducing the provisions, opined:-
“11. Sub-section (1) relates to the question as
to where a completed award has to be filed,
and prescribes the local jurisdiction for that
purpose. Sub-section (2) deals with the ambit
of the exercise of that jurisdiction, and
declares it to be exclusive by saying that “all
questions regarding the validity, effect or
existence of an award or arbitration agreement
between the parties to the agreement or
persons claiming under them shall be decided
by the court in which the award under the
agreement has been, or may be, filed and by
no other court”. Sub-section (3) is intended to
provide that all applications regarding the
conduct of arbitration proceedings or
otherwise arising out of such proceedings are
to be made only in one court, and lays on the
concerned party the obligation to do so. Then
comes sub-section (4), the object of which
apparently is to go further than sub-section
(3), that is, not merely casting on the party
concerned an obligation to file all applications
in one court but vesting exclusive jurisdiction 31
for such applications in the court in which the
first application has been already made.
12. Thus it will be seen on a comprehensive
view of Section 31 that while the first subsection
determines the jurisdiction of the court
in which an award can be filed, sub-sections
(2), (3) and (4) are intended to make that
jurisdiction effective in three different ways, (1)
by vesting in one court the authority to deal
with all questions regarding the validity, effect
or existence of an award or an arbitration
agreement, (2) by casting on the persons
concerned the obligation to file all applications
regarding the conduct of arbitration
proceedings or otherwise arising out of such
proceedings in one court, and (3) by vesting
exclusive jurisdiction in the court in which the
first application relating to the matter is filed.
The context, therefore, of sub-section (4) would
seem to indicate that the sub-section was not
meant to be confined to applications made
during the pendency of an arbitration. The
necessity for clothing a single court with
effective and exclusive jurisdiction, and to
bring about by the combined operation of
these three provisions the avoidance of conflict
and scramble is equally essential whether the
question arises during the pendency of the
arbitration or after the arbitration is completed
or before the arbitration is commenced. There
is no conceivable reason why the legislature
should have intended to confine the operation
of sub-section (4) only to applications made
during the pendency of an arbitration, if as is
contended, the phrase “in any reference” is to
be taken as meaning “in the course of a
reference”.”
[Underlining is ours]32
29. Further analyzing the scheme of the Act and various
categories of arbitration, the Court held:-
“13. … Indeed, having regard to the wide
language employed in these sub-sections it
has been assumed that sub-sections (2) and
(3) cover all three classes in all their stages. If
so, is there any sufficient reason to think that
sub-section (4) was meant to have a very
restricted operation? On the view of this subsection
suggested for the appellant, not only
would an application made after the award
was pronounced be excluded from sub-section
(4) but also an application made before the
commencement of the arbitration i.e. for the
filing of an agreement of reference and for a
direction thereupon. It must be remembered
that Section 31 is one of the group of sections
headed “General” which by virtue of Section 26
are applicable to all arbitrations. Unless
therefore the wording in sub-section (4) of
Section 31 is so compelling as to confine the
scope thereof to applications during the
pendency of an arbitration, such a limited
construction must be rejected.”
30. Explicating further, the three-Judge Bench
stated:-
“14. As already stated, the entire basis of the
limited construction is the meaning of the
phrase “in any reference” used in sub-section
(4) as meaning “in the course of any
reference”. But such a connotation thereof is
not in any ordinary sense compelling. The
preposition “in” is used in various contexts
and is capable of conveying various shades of
meaning. In the Oxford English Dictionary one
of the shades of meaning of this preposition is33
“Expressing reference or relation to
something; in reference or regard to; in the
case of, in the matter, affair, or province of.
Used especially with the sphere or
department in relation or reference to
which an attribute or quality is predicated.”
In the context of Section 31 sub-section (4), it
is reasonable to think that the phrase “in any
reference” means “in the matter of a
reference”. The word “reference” having been
defined in the Act as “reference to arbitration”,
the phrase “in a reference” would mean “in the
matter of a reference to arbitration”. The
phrase “in a reference” is, therefore,
comprehensive enough to cover also an
application first made after the arbitration is
completed and a final award is made, and in
our opinion that is the correct construction
thereof in the context. We are, therefore, of the
opinion that Section 31(4) would vest exclusive
jurisdiction in the court in which an
application for the filing of an award has been
first made under Section 14 of the Act.”
[Emphasis Supplied]
31. Before we proceed to analyze the ratio of Kumbha
Mawji, it is necessary to refer to what has been held in
Surjeet Singh Atwal (supra). In the said case, the
three-Judge Bench was dealing with the issue whether
the application made by the appellant therein under
Section 34 of the Act was an application in a reference 34
within the meaning of Section 31(4) of the Act. Placing
reliance on Kumbha Mawji, the Court held:-
“5. … There are different sections in the
Arbitration Act whereby an application is to be
made even before any reference has been
made. Section 8 for instance, provides for an
application to invoke the power of the Court,
when the parties fail to concur in the
appointment of an arbitrator to whom the
reference can be made. So also Section 20
provides for an application to file the
arbitration agreement in court so that an order
of reference to an arbitrator can be made.
These are clearly applications anterior to the
reference but they lead to a reference. Such
applications are undoubtedly applications “in
the matter of a reference” and may fall within
the purview of Section 31(4) of the Act even
though these applications are made before any
reference has taken place. But an application
under Section 34 is clearly not an application
belonging to the same category. It has nothing
to do with any reference. It is only intended to
make an arbitration agreement effective and
prevent a party from going to Court contrary to
his own agreement that the dispute is to be
adjudicated by a private tribunal.”
And again:-
“6. We do not, therefore, consider that an
application for stay of suit under Section 34 is
an application in a reference even within the
wider meaning given to that phrase by this
Court in Kumbha Mawji case. The second
condition imposed by Section 31(4) is that the
application for stay must be made to a Court
competent to entertain it. It should be noticed 35
that in Section 34 the expression “judicial
authority” is used. The section provides for an
application to a judicial authority before whom
a legal proceeding is pending for the stay of
that proceeding. An application for stay of
legal proceeding to a judicial authority before
whom it is pending is an application under the
Arbitration Act to a judicial authority
competent to entertain it. But the judicial
authority need not necessarily be a court
competent under Section 2(c) to decide the
question forming the subject-matter of the
reference. A party to an arbitration agreement
may choose to file a suit in a court which has
no jurisdiction to go into the matter at all and
merely because the defendant in such a suit
has to make an application to that Court
under Section 34 of the Act for the stay of the
suit it cannot be said that the Court which
otherwise has no jurisdiction in the matter
becomes a Court within the meaning of
Section 2(c) of the Act. The view that we have
expressed is borne out by the decisions of the
Calcutta High Court in Choteylal Shamlal v.
Cooch Behar Oil Mills Ltd.
17; Brittannia Building
& Iron Co. Ltd. v. Gobinda Chandra
Bhattacharya18 and Basanti Cotton Mills Ltd. v.
Dhingra Brothers19.”
32. From the aforesaid two judgments, it is crystal clear
that “reference” has been given a wider meaning in
Kumbha Mawji and the same has been followed in
Surjeet Singh Atwal (supra). In Guru Nanak
Foundation (supra), the two-Judge Bench distinguished
17 ILR (1951) Cal 418
18 64 CWN 325
19 AIR 1949 Cal 68436
the decision in Kumbha Mawji stating that the ratio in
the earlier case would not mean that a proceeding earlier
to the reference in a court would clothe that court with
such jurisdiction as to render the provision contained in
Section 31(4) otiose. We shall refer to the aforesaid
principle slightly at a later stage. Prior to that, we would
like to refer to certain other pronouncements wherein it
has been held that the Supreme Court alone has
jurisdiction if it had control over the proceedings. We
have earlier referred to Saith and Skelton (supra).
Mr. Viswanathan, learned senior counsel, has drawn
inspiration from Nav Bharat Construction Company
(supra) and Burn Standard Co. Ltd. (supra). In Burn
Standard Co. Ltd., the three-Judge Bench referred to
the order passed by this Court wherein directions were
issued that the arbitrator shall file the award in this
Court and any application which may become necessary
to be filed during or after the conclusion of the
arbitration proceedings shall be filed only in this Court
and, accordingly, it directed that the objection petition
under Section 34 could have been filed only in this 37
Court. This order was passed in the context of Section
34 of the 1996 Act. As we notice from the said order, no
independent reasons have been ascribed but the order
has been passed solely on the basis of an earlier order.
33. At this juncture, we think it apt to immediately refer
to the recent decision in Associated Contractors
(supra). The three-Judge Bench was dealing with the
meaning of “Court” under Section 2(1)(e) of the 1996 Act.
Answering the reference, the three-Judge Bench referred
to Section 2(1)(e) and Section 42 of the 1996 Act and in
that context, it has held:-
“20. As noted above, the definition of “court” in
Section 2(1)(e) is materially different from its
predecessor contained in Section 2(c) of the
1940 Act. There are a variety of reasons as to
why the Supreme Court cannot possibly be
considered to be “court” within the meaning of
Section 2(1)(e) even if it retains seisin over the
arbitral proceedings. Firstly, as noted above,
the definition is exhaustive and recognizes
only one of two possible courts that could be
“court” for the purpose of Section 2(1)(e).
Secondly, under the 1940 Act, the expression
“civil court” has been held to be wide enough
to include an appellate court and, therefore
would include the Supreme Court as was held
in the two judgments aforementioned under
the 1940 Act. Even though this proposition
itself is open to doubt, as the Supreme Court
exercising jurisdiction under Article 136 is not 38
an ordinary appellate court, suffice it to say
that even this reason does not obtain under
the present definition, which speaks of either
the Principal Civil Court or the High Court
exercising original jurisdiction. Thirdly, if an
application would have to be preferred to the
Supreme Court directly, the appeal that is
available so far as applications under Sections
9 and 34 are concerned, provided for under
Section 37 of the Act, would not be available.
Any further appeal to the Supreme Court
under Article 136 would also not be available.
The only other argument that could possibly
be made is that all definition sections are
subject to context to the contrary. The context
of Section 42 does not in any manner lead to a
conclusion that the word “court” in Section 42
should be construed otherwise than as
defined. The context of Section 42 is merely to
see that one court alone shall have jurisdiction
over all applications with respect to arbitration
agreements which context does not in any
manner enable the Supreme Court to become
a “court” within the meaning of Section 42. It
has aptly been stated that the rule of forum
conveniens is expressly excluded by Section
42 see JSW Steel Ltd. v. Jindal Praxair Oxygen
Co. Ltd.20, SCC at p. 542, para 59). Section 42
is also markedly different from Section 31(4) of
the 1940 Act in that the expression “has been
made in a court competent to entertain it”
does not find place in Section 42. This is for
the reason that, under Section 2(1)(e), the
competent court is fixed as the Principal Civil
Court exercising original jurisdiction or a High
Court exercising original civil jurisdiction, and
no other court. For all these reasons, we hold
that the decisions under the 1940 Act would
not obtain under the 1996 Act, and the
20 (2006) 11 SCC 52139
Supreme Court cannot be “court” for the
purposes of Section 42.
21. One other question that may arise is as to
whether Section 42 applies after the arbitral
proceedings come to an end. It has already
been held by us that the expression “with
respect to an arbitration agreement” are words
of wide import and would take in all
applications made before during or after the
arbitral proceedings are over. In an earlier
judgment, Kumbha Mawji v. Dominion of India,
the question which arose before the Supreme
Court was whether the expression used in
Section 31(4) of the 1940 Act “in any
reference” would include matters that are after
the arbitral proceedings are over and have
culminated in an award. It was held that the
words “in any reference” cannot be taken to
mean “in the course of a reference”, but mean
“in the matter of a reference” and that such
phrase is wide enough and comprehensive
enough to cover an application made after the
arbitration is completed and the final award is
made (see SCR pp. 891-93 : AIR pp. 317-18,
paras 13-16). As has been noticed above, the
expression used in Section 42 is wider being
“with respect to an arbitration agreement” and
would certainly include such applications.”
We have extensively referred to the said judgment
as we agree with the principle stated therein and there is
no reason to accept what has been stated in Burn
Standard Co. Ltd. (supra).
34. In Nav Bharat Construction Company (supra),
this Court had appointed a retired Judge of this Court as 40
umpire and had also held that the reference was not a
new one but a continuation of the earlier proceedings
under the Act. Further, the Court directed the award to
be filed in this Court. After the award was passed by the
learned arbitrator, the State of Rajasthan filed an
application for making the award Rule of the court and
at the same time, the respondent filed petition under
Sections 30 and 33 of the Act and interlocutory
application was filed by the respondent challenging the
jurisdiction of this Court to make the award absolute and
also to consider the objection raised by the respondent
against the award passed by the umpire in pursuance of
the order passed by this Court. Repelling the stand of the
respondent, the Court held:-
“11. From the judgment of this Court dated
4-10-2005, it has been made clear by this
Court in the operative part of the same, as
noted hereinearlier, that the award that would
be passed by the umpire must be filed in this
Court and secondly, it was clarified in the
judgment itself that this was not a case of a
new reference but a continuation of the earlier
proceeding and thus the Act shall continue to
apply. In McDermott International Inc., the
three-Judge Bench decision of this Court
clearly observed that since the arbitrator was
directed to file his award in this Court, the
objections as well as the entertainability of the 41
application of the appellant for making the
award a rule of the court must be filed in this
Court alone and, therefore, this Court has the
jurisdiction to entertain the application of the
appellant and also the objections filed by the
respondent.”
35. After so stating, the Court ruled that it had the
jurisdiction to deal with the objections filed under
Sections 30 and 33 of the Act.
36. We may immediately make it clear that in Nav
Bharat Construction Company (supra), the matter
related to reference under Section 20 of the Act.
37. Presently, we may proceed to analyze the reasoning
given by the three-Judge Bench in Saith and Skelton
(supra). The Court in the said case expressed the view
that the directions contained in the order passed by the
Court and the further proceedings indicated the
retention of full control by this Court over the arbitration
proceeding. Placing reliance on CT. A. CT. Nachiappa
Chettiar (supra), the Court held thus:-
“21. In Ct. A. Ct. Nachiappa Chettiar v. Ct. A.
Ct. Subramaniam Chettiar the question arose
whether the trial court had jurisdiction to refer
the subject-matter of a suit to an arbitrator
when the decree passed in the suit was 42
pending appeal before the High Court. Based
upon Section 21, it was urged before this
Court that the reference made by the trial
court, when the appeal was pending, and the
award made in consequence of such reference,
were both invalid as the trial court was not
competent to make the order of reference. This
Court rejected the said contention and after a
reference to Sections 2(c) and 21 of the Act
held that the expression “Court” occurring in
Section 21 includes also the appellate court,
proceedings before which are a continuance of
the suit. It was further held that the word
“suit” in Section 21 includes also appellate
proceedings. In our opinion, applying the
analogy of the above decision, the expression
“Court” occurring in Section 14(2) of the Act
will have to be understood in the context in
which it occurs. So understood, it follows that
this Court is the Court under Section 14(2)
where the arbitration Award could be validly
filed.”
38. In this backdrop, it is necessary to delve into what
precisely has been stated in CT. A. CT. Nachiappa
Chettiar (supra). The facts as narrated in the decision
are that a partition suit was filed by the respondent
therein. The question that emerged for consideration
pertained to the validity of the award made by the
arbitrators to whom the matters in dispute between the
parties were referred pending the present litigation. The
suit was fixed for hearing. An application was filed by 43
the appellant therein under Order VIII Rule 9 of the Code
of Civil Procedure for permission to file an additional
written statement. The said application was dismissed by
the trial Judge on the ground that it sought to raise a
new and inconsistent plea. Against the said decision,
appeals were filed before the High Court. The High Court
ordered that there was no need to stay all proceedings
before the Commissioner and that it would be enough if
the passing of the final decree alone was stayed. After the
said order was passed, the Commissioner commenced
his enquiry but before the enquiry could make any
progress, the parties decided to refer their disputes for
arbitration. As other proceedings in the suit were not
stayed, an application was filed by the parties before the
trial Judge requesting to refer the matter to arbitration.
The trial court allowed the said application and certified
that the proposed reference was for the benefit of the
minors and so referred “the matters in dispute in the suit
and all matters and proceedings connected therewith” for
determination by the two arbitrators named by the
parties. The arbitrators began their proceedings and 44
passed an interim award which was filed before the trial
court. An objection was filed to set aside the award on
the ground that the reference was bad and the
arbitrators were guilty of misconduct. That apart, many
other grounds were also raised. The said objections were
traversed by the other side and a prayer was made to
pass decree in terms of the award. The trial Judge
rejected the stand of the objector with regard to the
alleged misconduct of the arbitrators and further found
that there was no substance in the contention that the
reference was a result of undue influence or coercion.
The trial Judge, however, held that reference to the
arbitrators which included matters in dispute in the suit
comprised questions of title in relation to immoveable
properties in Burma and so it was without jurisdiction
and invalid. On appeal being preferred, the High Court
allowed the appeal of the respondent (respondent before
this Court) and confirmed the findings of the trial court
in respect of the pleas raised by the appellants before the
High Court as to the misconduct of the arbitrators and
invalidity of the reference on the ground that it was the 45
result of coercion and undue influence. It further
reversed the conclusions of the trial court that the
reference and the award were invalid inasmuch as they
related to immovable properties in Burma and
contravened the stay order passed by the High Court. It
is worthy to note that it was urged before the High Court
that the order of reference was invalid under Section 21
of the Act and that the trial court was not competent to
make the reference but the said contention was
negatived by the High Court. Consequently, the High
Court found that the reference and the award were valid
and, accordingly, it directed that a decree should be
passed in terms of the award.
39. This Court, in the course of analysis, considered the
objection against the validity of the reference as that was
seriously pressed before it. It took note of the submission
that the reference and award were invalid because the
trial court was not competent to make the order of
reference under Section 21 of the Act. The Court referred
to Section 21 and observed that two conditions must be
satisfied before an application in writing for reference is 46
made, namely, (i) all the interested parties to the suit
must agree to obtain a reference, and (ii) the subject
matter of the reference must be any matter in difference
between the parties to the suit. The three-Judge Bench
observed that the construction of the Section presents no
difficulty but to analyse the implication of the two
conditions and to seek to determine the denotation of the
word “Court” difficulties arise. It posed the question,
what does the word “Court” mean in relevant provision.
According to the appellants therein, “Court” means court
as defined by Section 2(c) of the Act. The argument on
behalf of the appellants therein was that the order of
reference could be made only by the trial court and not
by the appellate court and so, there could be no
reference after the suit was decided and a decree had
been drawn up in accordance with the judgment of the
trial court. As in the said case, the judgment had been
delivered by the trial court and a preliminary decree had
been drawn in accordance with it, there was no scope for
making any order of reference. Dealing with the
submission, the Court held:-47
“35. Does the “court” in the context mean the
trial court? This construction cannot be easily
reconciled with one of the conditions
prescribed by the section. After a decree is
drawn up in the trial court and an appeal is
presented against it, proceedings in appeal are
a continuation of the suit; and speaking
generally, as prescribed by Section 107 of the
Code of Civil Procedure the appellate court has
all the powers of the trial court and can
perform as nearly as may be the same duties
as are conferred and imposed on the trial
court. If that be so, during the pendency of the
appeal, can it not be said that matters in
difference between the parties in suit continue
to be matters in dispute in appeal? The
decision of the appeal can materially affect the
nature and effect of the decree under appeal;
and there is no doubt that all the points raised
for the decision of the appellate court can be
and often are points in difference between
them in the suit; and, in that sense, despite
the decision of the trial court the same points
of difference in suit continue between the
parties before the appellate court. If during the
pendency of such an appeal parties interested
agree that any matter in difference between
them in the appeal should be referred to
arbitration the first two conditions of the
section are satisfied. When Section 21 was
enacted did Legislature intend that during the
pendency of the appeal no reference should be
made even if the parties satisfied the first two
conditions prescribed by the section?”
40. Further analyzing the object of enacting Section 21
and the intention behind the said Section, the Court
ruled:-48
“36. Having regard to the fact that the words
used in Section 21 are substantially the same
as those used in Schedule II, para 1, of the
earlier Code, it would be difficult to sustain the
plea that the enactment of Section 21 was
intended to bring about such a violent
departure from the existing practice. If that
had been the intention of the Legislature it
would have made appropriate changes in the
words used in Section 21. Therefore, the word
“court” cannot be interpreted to mean only the
trial court as contended by the appellants.
Similarly, the word “suit” cannot be construed
in the narrow sense of meaning only the suit
and not an appeal. In our opinion, “court” in
Section 21 includes the appellate court
proceedings before which are generally
recognised as continuation of the suit; and the
word “suit” will include such appellate
proceedings. We may add that whereas Section
41 of the Act is consistent with this view no
other section militates against it.”
41. Proceeding further, the three-Judge Bench
expressed thus:-
“37. … In our opinion the scheme of the
section does not permit the addition of any
words qualifying the word “judgment” used in
it. The expression “at any time before the
judgment is pronounced” is only intended to
show the limit of time beyond which no
reference can be made, and that limit is
reached when a final judgment is pronounced.
The provision that “any matter in difference
between the parties in the suit can be referred
to arbitration” cannot be subjected to the
further limitation that the said matter can be
referred to arbitration if it is not covered by the
judgment of the court. The effect of the section 49
appears to be that so long as the final
judgment is not pronounced by the court any
matter — i.e., some or all the matters — in
difference between the parties can be referred
to arbitration provided they are agreed about
it. If a reference can be made even at the
appellate stage when all matters in difference
between the parties are covered by the final
judgment of the trial court, it is difficult to
understand why in allowing reference to be
made during the pendency of the suit in the
trial court any further conditions should be
imposed that only such matters of difference
can be referred to as are not covered by an
interlocutory judgment of the court. We would
accordingly hold that it is open to the trial
court to refer to arbitration any matters of
difference between the parties to the suit
provided they agree and apply at any time
before the court pronounces its final judgment
in the suit.”
42. We may also note with profit that the Court
addressed to another complication as the appeals were
pending before the High Court at the material time. The
issue that arose was which is the court that had
jurisdiction in such a case to make the order of
reference. The Court opined that there is no difficulty in
holding that if the suit is pending in the trial court and a
final judgment has not been pronounced by it, it is the
trial court which is competent to make the order of
reference. Similarly, if a suit has been decided, a final 50
judgment has been delivered and a decree has been
drawn up by the trial court and no appeal has been
preferred against it, the matter is concluded and there is
no scope for applying Section 21 at all. Proceeding
further, the Court stated that if a decree determining the
suit has been drawn up by the trial court and it is taken
to the appellate court, during the pendency of the appeal,
it is the appellate court that is competent to act under
Section 21. It further observed that these categories of
cases do not present any difficulty but where a
preliminary decree has been drawn up and an appeal
has been filed against it, the complication arises by
reason of the fact that the disputes between the parties
are legally pending before two courts. Proceedings which
would have to be taken between the parties in pursuance
of, and consequent upon, the preliminary decree are
pending before the trial court whereas matters in
difference between the parties which are covered by the
preliminary judgment and decree are pending before the
appellate court. In that context, the Court held:-
“39. … In such a case it may perhaps be
logically possible to take the view that the 51
arbitration in respect of the disputes in
relation to proceedings subsequent to the
preliminary decree can be directed by the trial
court, whereas arbitration in respect of all the
matters concluded by the trial court’s
preliminary judgment which are pending
before the appellate court can be made by the
appellate court; but such a logical approach is
not wholly consistent with Section 21; and
rather than help to solve any difficulty it may
in practice create unnecessary complications.
In most cases matters in dispute before the
trial court in final decree proceedings are so
inextricably connected with the matters in
dispute in appeal that effective arbitration can
be ordered only by one reference and not by
two. We are, therefore, inclined to hold that in
a case of this kind where both the courts are
possessed of the matters in dispute in part it
would be open to either court to make an order
of reference in respect of all the matters in
dispute between the parties. It is argued that
on such a construction conflict of decisions
may arise if two sets of arbitrators may be
appointed. We do not think that such a conflict
is likely to occur. If the parties move the trial
court and obtain an order of reference they
would inevitably ask for appropriate orders of
withdrawal or stay of the appellate
proceedings; if, on the other hand, they obtain
a similar order of reference from the appellate
court they would for similar reasons apply for
stay of the proceedings before the trial court.
In the present case proceedings subsequent to
the preliminary decree were pending before the
trial court and so we must hold that the trial
court was competent to act under Section 21.
On that view the objection against the validity
of the reference based on the provisions of
Section 21 cannot succeed.”52
43. The aforesaid analysis of the Court has to be
appositely appreciated. It seems to us, the facts in the
said case were quite different and the principle that the
Court has laid down lucidly states that the appellate
court includes the court of first instance and the power of
reference under Section 21 of the Act can still be
exercised by the appellate court under certain
circumstances. We do not have any difference with the
proposition that has been laid down in the said decision.
The analogy of the said decision has been applied to
understand the expression “Court” occurring in Section
14(2) of the Act. True, in Saith and Skelton (supra), the
learned Judges have qualified the same by stating the
context in which it occurs. Bestowing our thoughtful
consideration, we are disposed to think that the analogy
taken from CT. A. CT. Nachiappa Chettiar (supra) and
applying to the superior courts attaching condition
precedent that should the superior court retain control
over the arbitral proceedings, it will have exclusive
jurisdiction is neither correct nor acceptable. On a
careful reading of the judgment in CT. A. CT. Nachiappa 53
Chettiar, we do not find anything that can be remotely
connected to confer power on the superior courts to deal
with the award directly. The analogy, if any, has to stop
at a particular level. To explicate, in a given case, the
parties may agree for arbitration and the court may think
it appropriate to send it for arbitration. But to expand
the theory that the court had issued directions after the
appointment of arbitrator and was in control of it and,
therefore, the award can only be filed before the superior
court for the purpose of making it a Rule of Court as has
been held in Saith and Skelton does not flow from the
correct understanding of the principle stated in CT. A.
CT. Nachiappa Chettiar.
44. Guru Nanak Foundation (supra), as we have
narrated earlier, refers to the definition of “Court” and
analyses sub-section (2) of Section 14 and sub-section (4)
of Section 31 and opines that sub-section (4) of Section
31 not only confers exclusive jurisdiction on the court to
which an application is made in any reference but also
simultaneously ousts the jurisdiction of any other court 54
which may as well have jurisdiction in itself. To illustrate
the point further, the Bench has stated:-
“15. … if an Award was required to be filed
under Section 14(2) read with Section 31(1) in
any particular court as being the court in
which a suit touching the subject-matter of
Award would have been required to be filed,
but if any application in the reference under
the Act has been filed in some other court
which was competent to entertain that
application, then to the exclusion of the first
mentioned court the latter court alone, in view
of the overriding effect of the provision
contained in Section 31(4), will have
jurisdiction to entertain the Award and the
Award will have to be filed in that court alone
and no other court will have jurisdiction to
entertain the same.”
And again:-
“16. The provision contained in sub-section (2)
of Section 14 will neither be rendered otiose
nor stand in disharmony on the construction
that we place on sub-section (4) of Section 31
because the expression “court” as defined in
Section 2(c) will have to be adhered to unless
there is anything repugnant in the subject or
context in which it is used. Therefore, the
expression “court” as used in Section 14(2) will
have to be understood in this background.”
The aforesaid reasoning, does not really lay the
foundation for establishing the proposition that if a
superior court keeps control over the arbitral proceeding
the award can only be filed before the said Court.55
45. At this juncture, we may refer to the definition of
the word ‘Court’ in Section 2(c) of the Act. It reads as
follows:-
“Section 2(c) ‘Court’ means a Civil Court
having jurisdiction to decide the question
forming the subject-matter of the reference if
the same had been the subject matter of a
suit, but does not, except for the purpose of
arbitration proceedings under Section 21,
include a Small Cause Court.”
46. Section 14 deals with the award to be signed and
filed by the Arbitrator. Section 14(2) refers to the word
“Court”. Sub-section (2) reads as follows:-
“(2) The arbitrators or umpire shall, at the
request of any party to the arbitration
agreement or any person claiming under such
party or if so directed by the Court and upon
payment of the fees and charges due in respect
of the arbitration and award and of the costs
and charges of filing the award, cause the
award or a signed copy of it, together with any
depositions and documents which may have
been taken and proved before them, to be filed
in Court, and the Court shall thereupon given
notice to the parties of the filing of the award.”
47. Section 31 deals with the jurisdiction of the Courts.
Sub-section (1) stipulates that subject to the provisions
of this Act, an award may be filed in any court having
jurisdiction in the matter to which the reference relates. 56
Sub-section (2) lays down that notwithstanding anything
contained in any other law for the time being in force and
save as otherwise provided in this Act, all questions
regarding the validity, effect or existence of an award or
an arbitration agreement between the parties to the
agreement or persons claiming under them shall be
decided by the court in which the award under the
agreement has been, or may be, filed, and by no other
Court. Sub-section (4) which commences with a nonobstante
clause, reads as follows:-
“(4) Notwithstanding anything contained
elsewhere in this Act or in any other law for
the time being in force, where in any reference
any application under his Act has been made
in a Court competent to entertain it, that
Court alone shall have jurisdiction over the
arbitration proceedings and all subsequent
application arising out of that reference and
the arbitration proceeding shall be made in
that court in no other Court.”
48. The said provision, as noted earlier, has been
interpreted in Kumbha Mawji (supra). Interpreting the
said provision, the three-Judge Bench has held that the
object of the said sub-section is apparently to go further
than sub-section (3), that is, not merely casting on the
party concerned an obligation to file all applications in 57
one court for vesting exclusive jurisdiction for such
applications in the court in which the first application
has been already made. The interpretation placed by the
three-Judge Bench is to the effect that on a
comprehensive view of Section 31 that while the first
sub-section determines the jurisdiction of the court in
which an award can be filed, sub-sections (2), (3) and (4)
are intended to make that jurisdiction effective in three
different ways, (1) by vesting in one court the authority to
deal with all questions regarding the validity, effect or
existence of an award or an arbitration agreement, (2) by
casting on the persons concerned the obligation to file all
applications regarding the conduct of arbitration
proceedings or otherwise arising out of such proceedings
in one court, and (3) by vesting exclusive jurisdiction in
the court in which the first application relating to the
matter is filed. The further analysis of the Court is that
the context of sub-section (4) would seem to indicate that
the sub-section was not meant to be confined to
applications made during the pendency of an arbitration.
The necessity for clothing a single court with effective 58
and exclusive jurisdiction, and to bring about by the
combined operation of the three provisions the avoidance
of conflict and scramble is equally essential whether the
question arises during the pendency of the arbitration or
after the arbitration is completed or before the arbitration
is commenced. There is no conceivable reason that the
legislature has intended to confine the operation of subsection
(4) only to applications made during the
pendency of arbitration because the phrase “in any
reference” is to be taken as meaning “in the course of a
reference”.
49. As noted earlier, the Court has interpreted the
phrase ‘in any reference’ to connote ‘in the matter or
course of a reference’ which would mean in the matter of
a reference to arbitration and also include the stage when
the final award is made. This has been distinguished in
Guru Nanak Foundation by referring to Section 31(4) of
the Act as regards the meaning of the word ‘Court’ and
assuming the premise that the Supreme Court can also
become the court of first instance if it has retained
control over the proceedings. On a perusal of the 59
definition of the term ‘Court’ in the dictionary clause and
the meaning of the word ‘Court’ as employed in Section
31(4) of the Act and appreciating the same in the context
of the provisions and also taking note of the scheme of
the Act, we find that the construction placed in Guru
Nanak Foundation (supra) suffers from a fundamental
fallacy. The language used in Section 31(4) of the Act
commences with the non-obstante clause. The said part
of the provision has to be understood in the textual
context because primarily the provision is an enabling
one and the real intendment that is conveyed through the
vehicle of expressive language is that where any
application has been made in a reference under the Act
as regards the Court which has competence to entertain
an application, that court alone shall have the
jurisdiction over the arbitration proceedings. The purpose
behind the said provision is to avoid conflict in the
exercise of jurisdiction and to inject the intention of
certainty of the jurisdictional court keeping in view the
scheme of the Act which is meant to facilitate the process
of arbitration and see the finality of the post award 60
proceedings. Therefore, it is difficult to accept that the
Supreme Court can assume original jurisdiction, solely
because of control over the proceedings, for original
jurisdiction has been conferred upon the Supreme Court
under Articles 32 and 131 of the Constitution. It is also
worthy to note that the said original jurisdiction is not
available to this Court in respect of a dispute that finds
mention in Article 262 of the Constitution. In State of
Karnataka v. State of Tamil Nadu and others21, the
three-Judge Bench, after analysing the width of Article
32 and the concept of original jurisdiction of the Supreme
Court as envisaged under Article 131 of the Constitution
and analyzing the language employed under Article 262,
has held that the authority conferred under Article 32
has its limitations when the lis under Article 262
emerges. The Constitution has not provided machinery
for resolution of the disputes in the Constitution but has
empowered Parliament to make laws to provide to
exclude the power of the Supreme Court or any other
court with regard to jurisdiction in respect of complaints
21 (2017) 3 SCC 36261
or disputes that find mention in Article 262(1).
Thereafter, the Court referred to the authorities in State
of Orissa v. Government of India and another22 and
Networking of Rivers, In re23. In Networking of
Rivers, in re (supra), the Court ruled that Section 11 of
the Inter-State River Water Disputes Act, 1956 (for short,
“the 1956 Act”) uses the expression “use, distribution
and control of water in any river” and they are the
keywords in determination of the scope of power
conferred on a tribunal constituted under Section 3 of
the 1956 Act. If a matter fell outside the scope of these
three crucial words, the power of Section 11 of the 1956
Act in ousting the jurisdiction of the courts in respect of
any water dispute, which is otherwise to be referred to
the tribunal, would not have any manner of application.
The test of maintainability of a legal action initiated by a
State in a court would thus be, whether the issues raised
therein are referable to a tribunal for adjudication of the
manner of use, distribution and control of water.
22 (2009) 5 SCC 492
23 (2012) 4 SCC 5162
50. Be it noted, in the said case, the three-Judge Bench
opined that the award passed by the Tribunal can be
scrutinized under Article 136 of the Constitution and the
special leave to appeal would be maintainable. The
purpose of referring to the aforesaid judgment in detail is
to show that where the original jurisdiction has been
conferred by the Constitution upon this Court and where
it is barred.
51. In the aforesaid backdrop, the question that is
required to be posed is whether this Court by using the
expression “keep controls over the arbitral proceeding”
can assume original jurisdiction. As indicated earlier, the
Court has assumed the jurisdiction by interpreting the
word ‘Court’ as used in Section 31(4) of the Act. We have
already held that interpretation is not in accord with the
language used in the provision and the intention of the
legislature. It is clear to us that the court competent to
entertain the reference will have the jurisdiction to deal
with the objections to the award or any post award
proceeding. 63
52. Another significant issue that arises for
consideration is whether the Court can, by assuming
such original jurisdiction, deprive the party to prefer an
appeal which is statutorily provided. In Bharat Coking
Coal Limited, it has been observed thus:-
“8. It is now a trite law that whenever a term has
been defined under a statute, the same should
ordinarily be given effect to. There cannot,
however, be any doubt whatsoever that the
interpretation clause being prefaced by the words
“unless there is anything repugnant in the
subject and context” may in given situations lead
this Court to opine that the legislature intended a
different meaning. (See State of Maharashtra v.
Indian Medical Assn.24 and Pandey & Co.
Builders (P) Ltd. v. State of Bihar25.)
9. While determining such a question, the Court
ordinarily again must preserve the right of a
party to prefer an appeal. A right of appeal is a
valuable right and unless there exist cogent
reasons, a litigant should not be deprived of the
same. It is a statutory right.”
53. It is worthy to mention that in the said case, the
two-Judge Bench had distinguished Guru Nanak
Foundation on facts. But the emphasis has been on the
sustenance of the right of a party to prefer an appeal. In
this context, Mr. Sinha has drawn our attention to the
24 (2002) 1 SCC 589
25 (2007)1 SCC 46764
Constitution Bench decision in Garikapati Veeraya
(supra) that lays down that the legal pursuit of a remedy,
suit, appeal and second appeal are really but steps in a
series of proceedings all connected by an intrinsic unity
and are to be regarded as one legal proceeding and the
right of appeal is not a mere matter of procedure but is a
substantive right. It has been further held that the right
of appeal is a vested right and such a right to enter the
superior court accrues to the litigant and exists as on
and from the date the lis commences and although it
may be actually exercised when the adverse judgment is
pronounced such right is to be governed by the law
prevailing at the date of the institution of the suit or
proceeding and not by the law that prevails at the date of
its decision or at the date of the filing of the appeal and
the said vested right of appeal can be taken away only by
a subsequent enactment, if it so provides expressly or by
necessary intendment and not otherwise.
54. The principle laid down by the Constitution Bench
graphically exposits that right to appeal is a vested right
and such a right exists on and from the date the lis65
commences and the said right can be taken away only by
a subsequent enactment, if it so provides expressly or by
necessary intendment and not otherwise. In this context,
we have also been commended to the authority in A.R.
Antulay (supra). In the said case referring to Prem
Chand Garg and another v. The Excise
Commissioner, U.P and others26 and relying on the
same, Sabyasachi Mukharji, J. (as His Lordship then
was) stated:-
“50. … The fact that the rule was discretionary
did not alter the position. Though Article
142(1) empowers the Supreme Court to pass
any order to do complete justice between the
parties, the court cannot make an order
inconsistent with the fundamental rights
guaranteed by Part III of the Constitution. No
question of inconsistency between Article
142(1) and Article 32 arose. Gajendragadkar,
J., speaking for the majority of the judges of
this Court said that Article 142(1) did not
confer any power on this Court to contravene
the provisions of Article 32 of the Constitution.
Nor did Article 145 confer power upon this
Court to make rules, empowering it to
contravene the provisions of the fundamental
right. At page 899 of the Reports,
Gajendragadkar, J., reiterated that the powers
of this Court are no doubt very wide and they
are intended and “will always be exercised in
the interests of justice”. But that is not to say
that an order can be made by this Court which
26 1963 Supp. 1 SCR 885 : AIR 1963 SC 99666
is inconsistent with the fundamental rights
guaranteed by Part III of the Constitution. It
was emphasised that an order which this Court
could make in order to do complete justice
between the parties, must not only be
consistent with the fundamental rights
guaranteed by the Constitution, but it cannot
even be inconsistent with the substantive
provisions of the relevant statutory laws
(emphasis supplied). The court therefore, held
that it was not possible to hold that Article
142(1) conferred upon this Court powers which
could contravene the provisions of Article 32.”
55. In paragraph 91 of the said judgment, in the
concurring opinion, it has been stated thus:-
“91. It is the settled position in law that
jurisdiction of courts comes solely from the law
of the land and cannot be exercised otherwise.
So far as the position in this country is
concerned conferment of jurisdiction is
possible either by the provisions of the
Constitution or by specific laws enacted by the
legislature. For instance, Article 129 confers all
the powers of a court of record on the Supreme
Court including the power to punish for
contempt of itself. Articles 131, 132, 133, 134,
135, 137, 138 and 139 confer different
jurisdictions on the Supreme Court while
Articles 225, 226, 227, 228 and 230 deal with
conferment of jurisdiction on the High Courts.
Instances of conferment of jurisdiction by
specific law are very common. The laws of
procedure both criminal and civil confer
jurisdiction on different courts. Special
jurisdiction is conferred by special statute. It is
thus clear that jurisdiction can be exercised
only when provided lower either in the
Constitution or in the laws made by the 67
legislature. Jurisdiction is thus the authority
or power of the court to deal with a matter and
make an order carrying binding force in the
facts. In support of judicial opinion for this
view reference may be made to the Permanent
Edition of “Words und Phrases” Vol. 23-A at
page 164. It would be appropriate to refer to
two small passages occurring at pages 174 and
175 of the volume. At page 174, referring to
the decision in Carlile v. National Oil &
Development Co. it has been stated.
Jurisdiction is the authority to hear
and determine, and in order that it
may exist the following are essential:
(1) A court created by law, organized
and sitting; (2) authority given to it by
law to hear and determine causes of
the kind in question; (3) power given to
it by law to render a judgment such as
it assumes to render; (4) authority over
the parties to the case if the judgment
is to bind them personally as a
judgment in personam, which is
acquired over the plaintiff by his
appearance and submission of the
matter to the court, and is acquired
over the defendant by his voluntary
appearance, or by service of process on
him; (5) authority over the thing
adjudicated upon its being located
within the court’s territory, and by
actually seizing it if liable to be carried
away; (6) authority to decide the
question involved, which is acquired by
the question being submitted to it by
the parties for decision.”68
56. In Shiv Shakti Coop. Housing Society, Nagpur v.
Swaraj Developers and others27, it has been expressed
that the right of appeal is statutory and when conferred
by a statute, it becomes a vested right. Jurisdiction
vested in an appellate court in a hierarchical system is to
rectify the errors and that is why it is called “error
jurisdiction” as has been held in Vikas Yadav v. State
of Uttar Pradesh and others28. A similar view has been
expressed in Nahar Industrial Enterprises Limited v.
Hong Kong and Shanghai Banking Corporation29.
57. In Guru Nanak Foundation (supra), as noted
earlier, the two-Judge Bench has distinguished the
principle laid down in Garikapati Veeraya (supra) by
stating that the door of this Court is not closed to the
appellant. In fact, as has been stated, the door is being
held wide ajar for him to raise all contentions which one
can raise in a proceeding in an originating summons.
The aforesaid statement of law is not correct because the
superior court is not expected in law to assume
27 (2003) 6 SCC 659
28 (2016) 9 SCC 541
29 (2009) 8 SCC 64669
jurisdiction on the foundation that it is a higher court
and further opining that all contentions are open. The
legislature, in its wisdom, has provided an appeal under
Section 39 of the Act. Solely because a superior court
appoints the arbitrator or issues directions or has
retained some control over the arbitrator by requiring
him to file the award in this Court, it cannot be regarded
as a court of first instance as that would go contrary to
the definition of the term ‘court’ as used in the dictionary
clause as well as in Section 31(4). Simply put, the
principle is not acceptable because this Court cannot
curtail the right of a litigant to prefer an appeal by stating
that the doors are open to this Court and to consider it
as if it is an original court. Original jurisdiction in this
Court has to be vested in law. Unless it is so vested and
the Court assumes, the court really scuttles the forum
that has been provided by the legislature to a litigant.
That apart, as we see, the said principle is also contrary
to what has been stated in Kumbha Mawji. It is worthy
to note that this Court may make a reference to an
arbitrator on consent but to hold it as a legal principle
that it can also entertain objections as the original court
will invite a fundamental fallacy pertaining to
jurisdiction.
58. In Surjit Singh Atwal (supra), a three-Judge
Bench had opined that applications under Section 8 and
under Section 20, though clearly applications anterior to
the reference, lead to a reference. Such applications are
undoubtedly applications “in the matter of a reference”
and may fall within the purview of Section 31(4) of the
Act even though these applications are made before any
reference has taken place. The purpose of referring to
the said authority is that the principle stated in Kumbha
Mawji (supra) has been elaborated in Surjit Singh
Atwal (supra). It is to be borne in mind that the Court
that has jurisdiction to entertain the first application is
determinative by the fact as to which Court has the
jurisdiction and retains the jurisdiction. In this regard,
an example may be cited. When arbitrator is not
appointed under the Act and the matter is challenged
before the High Court or, for that matter, the Supreme
Court and, eventually, an arbitrator is appointed and
some directions are issued, it will be inappropriate and
inapposite to say that the superior court has the
jurisdiction to deal with the objections filed under
Sections 30 and 33 of the Act. The jurisdiction of a Court
conferred under a statute cannot be allowed to shift or
become flexible because of a superior court’s interference
in the matter in a different manner.
59. Thus analysed, we arrive at the irresistible
conclusion that the decisions rendered in Saith and
Skelton (supra) and Guru Nanak Foundation (supra)
do not lay the correct position of law and, accordingly,
they are overruled. Any other judgment that states the
law on the basis of the said judgments also stands
overruled.
60. Having so stated, we would have directed the matter
to be listed before the appropriate Bench. But it is not
necessary as we find the appellant-State has filed the
objection before the Civil Court. If the objection of the
State is not there on record, liberty is granted to the
State as well as the respondent to file their respective
objections within thirty days from today. The objections
shall be decided on their own merits.
61. Resultantly, the appeal stands disposed of in above
terms. There shall be no order as to costs.
.…………………………….CJI
[ Dipak Misra ]
………………………………..J.
[ A.K. Sikri ]
…………………………………J.
[ A.M. Khanwilkar ]
…………………………………J.
[ Dr. D.Y. Chandrachud ]
…………………………………J.
[ Ashok Bhushan ]
New Delhi;
December 14, 2017
No comments:
Post a Comment