Holding

When the court does not retain control over the arbitrator’s proceedings, the arbitral award must be filed before a court having the requisite jurisdiction, and the Supreme Court lacks jurisdiction to entertain such applications.

Summary

Bharat Coking Coal Ltd entered into a contract with M/s. Annapurna Construction which later gave rise to a dispute. An arbitrator was appointed under the Arbitration Act, 1940 and awarded a sum to the respondent; the award was set aside by the Supreme Court because the arbitrator failed to consider relevant contract clauses. A second arbitrator was appointed, rendered a new award, and the parties ostensibly agreed that the award would be filed before the Supreme Court, but the appellant objected, challenging the Court’s jurisdiction to entertain the filing and related objections. The Court examined the statutory definitions of “court” in the 1940 Act (s.2(c)) and the Arbitration and Conciliation Act, 1996 (s.2(1)(e)), and held that where the court does not retain control over the arbitrator’s proceedings, the award must be filed before a court having the requisite jurisdiction, not the Supreme Court. Consequently, the Supreme Court found it had no jurisdiction under s.14(2) of the 1940 Act or s.34 of the 1996 Act to entertain the applications and ordered the records to be sent to the District Judge, Dhanbad for transfer to the appropriate forum. The applications were dismissed and the matter was directed to be disposed of by the appropriate lower court.

Issues considered

Whether the Supreme Court has jurisdiction to entertain applications under Section 14(2) of the Arbitration Act, 1940 (or Section 34 of the Arbitration and Conciliation Act, 1996) for filing an arbitral award when it has not retained control over the arbitrator’s proceedings.
Which court is the appropriate forum for filing an arbitral award under the definitions of “court” in the 1940 Act and the 1996 Act.

Legislation cited

Arbitration Act, 1940s. 14(2), s. 2(c), s. 30
Arbitration and Conciliation Act, 1996s. 11(6), s. 2(1)(e), s. 34, s. 37

Subjects

arbitrationaward filingjurisdictionSupreme CourtArbitration Act 1940Arbitration and Conciliation Act 1996definition of courtappeal right

Judgment

[2008] 3 S.C.R. 1124

A BHARAT COKING COAL LTD.
II.
.. '
M/S. ANNAPURNA CONSTRUCTION
(I.A. Nos. 1-2 of 2005 in
Civil Appeal Nos. 5647-5648 of 1997)
B MARCH 5, 2008
...
[S.B~ SINH~ AND V.S. SIRPURKAR, JJ.]
*
Arbitration Act, 1940 - s. 2(c) - Filing of an award by
c arbitrator - Appropriate court - On facts, award passed by
appointed arbitrator, set aside by Supreme Court since
arbitrator did not consider relevant clause of Contract -
Another arbitrator appointed who passed an award - Parties
agreeing that award be filed before Supreme Court - However,
objections by one of them - On appeal, held: Supreme Court
D ~
did not and could not retain any control over the proceeding
of arbitrator - Award must be filed before the court having
requisite jurisdiction - Also, jurisdiction not exercised u/
s.11(6) - By consent of parties also, jurisdiction cannot be
assumed by this Court - Thus, Supreme Court has no
E ;urisdiction to entertain applications - Arbitration and
Conciliation Act, 1996 - s.11(6).
1
The respondent and the appellant entered into a
.contract. Dispute ar6se between the parties. Arbitration ,.__
F agreement was invoked. An arbitrator was appointed who
passed an award in favour of the respondent. The matter
came up before this Court arising out of the proceedings
for making the said awarci a rule of the Court. This Court
set aside the award referring the disputed claims to
another arbitrator since the arbitrator failed to consider
G
some relevant clauses of the contract. The claims were
raised before the arbitratpr who passed an award. Before
the arbitrator parties agreed that the a_ward would be filed ..
before this Court. However, the appellant filed applications

H 1124
BHARAT COKING COAL LTD. v. MIS. ANNAPURNA 1125
CONSTRUCTION

questioning the jurisdiction of this Court to entertain the A
" objections filed under the Arbitration Act, 1940.
f-
Disposing of the applications, the Court .
HELD: 1.1 Whenever a term has been defined under
a statute, the same should ordinarily be given effect to. B
Ho~ever, there cannot 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
t_hat the legislature intended a different mea'ning.
[Para 8] [1129-C-D]
c
State of Maharashtra v. Indian Medical Association and
Ors. 2002 (1) SCC 589; Pandey and Co. Builders (P) Ltd. v.
State of Bihar and Anr. 2007 (1) SCC 467 - ·relied on.

~
1.2 While determining such a question, the court D
} ordinarily again must preserve the right ofa 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. Ordinarily,
although there may be cases to the contrary, the principle E
that the right of appeal should not be taken away, should
be applied. There might be strong reason to deny the
suitor a right of appeal. [Para 9 and 16J [1129-E-F; 1133-G]
2.1 In. the instant case, the matter came up before this
··' Court whence an arbitrator had already been appointed F
and an award had been made. An arbitrator was appointed
by this Court while setting aside the said award
particularly in view of the fact that construction of the
contract was in question. The court did. not and could not
retain any control over the proceedings of the arbitrator. G
Thus, a distinction must be borne in mind in a case where
this Court had no control over the proceedings and the
• J
~
case in which control of proceedings of the arbitrator had
been retained. In the former case, having regard to the
definition of the term "court" as contained in Section 2(c) H
1126 SUPREME COURT REPORTS (2008) 3 S.C.R.

A of the Arbitration Act, 1940, award must be filed before a ~
court which has the requisite jurisdiction thereover. ""
[Paras 12 and 13] [1132-D-F]
2.2 It is also not a case where this Court has exercised
its jurisdiction under sub-section (6) of Section 11 of the
8 Arbitration and Conciliation Act, 1996. As the question of
jurisdiction of a Court is involved, by consent of the
parties also, jurisdiction cannot be assumed by this Court.
Therefore, this Court has no jurisdiction to entertain these •
applications. The Registry is directed to send the records
C to the Court of District Judge, Dhanbad who in turn is
directed to transfer the case to a court having appropriate
jurisdiction. [Paras 20, 21 and 22] [1135-H; 1136-B-D]
State of Madhya Pradesh v. Mis. Saith and Skelton (P)
D Ltd. 1972 (1) SCC 702; Mis. Guru Nank Foundation v. Mis.
Rattan Singh and Sons 1981 (4) SCC 634; National "
Aluminium Co. Ltd. v. Presstee/ & Fabrications (P) Ltd. and '
Anr. 2004 (1) SCC 540; State of Goa v. Western Builders 2006
(6) SCC 239; Mis. Bharat Coking Coal Ltd. v. H.P Biswas and
Company decided by Supreme Court on 22.08.1997 in Civil
E Appeal No. 3504of1992; Garhwal Manda/ Vikas Nigam Ltd.
v. Mis. Krishna Travel Agency IA 1 & 2 in SLP (C) No. 18344
of 2004 dated 24.01.2007; Mcdermott International Inc. v.
Burn Standard Co. Ltd. and Ors. 2005 (10) SCC 353; ITC Ltd.
v. George Joseph Fernandes and Anr. 2005 (10) SCC 425 -
F referred to. "' -
'Arbitration, Conciliation and Mediation' by Shri V.A.
Mohta II Edn. p 82 - referred to.
CIVIL APPELLATE JURISDICTION: I.A. Nos. 1-2/2005 in
G Civil Appeal Nos. 5647-5648 of 1997.
Ajit Kumar Sinha and Aabhas Parimal for the Appellant.
S.B. Upadhyay, Santosh Mishra, Paan Upadhyay, .{_
Shivmangal Sharma and Sharmila Upadhyay for the
H Respondent.
BHARAT COKING COAL LTD. v, M/S. ANNAPURNA 1127
CONSTRUCTION [S.B. SINHA, J.]

The Judgment of the Court was delivered by A
~

f- 5.8. SINHA, J. 1. Which would be the appropriate court
for the purpose of filing of an award by the arbitrator is the
question involved herein.
2. The said question arises in the following circumstances: B
Respondent herein admittedly was a contractor of the
.. appellant. Disputes and differences having a.risen between the
~ parties, the arbitration agreement was invoked. An arbitrator
was appointed.
c
The parties hereto raised their claims and counter-claims
before the arbitrator. He made an award of Rs.18,97,729.37 in
favour of the respondent.
3. A question of law was raised when the matter ultimately
came up before the court arising out of the proceedings for D
~ making the said award a rule of the court, and this Court in its
'> judgment dated 29.08.2003 [since reported in (2003) 8 sec
154], while setting aside the award, directed:
"40. However, as noticed hereinbefore, this case stands
E
on a different footing, namely, that the arbitrator while
passing the award in relation to some items failed and/or
neglected to take into consideration the relevant clauses
of the contract, nor did he take into consideration the
relevant materials for the purpose of arriving at a correct
-~ fact. Such an order would amount to misdirection in law. F
41. We are, therefore, of the opinion that the matter
requires reconsideration. Having regard to the facts and
circumstances of this case and particularly keeping in view
the fact that the matter relates to pure interpretation of G
do'cument which gives rise to question of law and in stead
and in place of"remitting the matter to the named arbitrator,
we would direct that the disputes in relation to Claim Items
-,._
)
3, 7 and 11 be referred to the Hon'ble Mr Justice D.N.
Prasad, a retired Judge of the Jharkhand High Court on
H
1128 SUPREME COURT REPORTS [2008] 3 S.C.R.

A such terms and conditions as may be mutually agreed
~
upon by the parties. The learned arbitrator is requested to
-'\"
consider the desirability of making his award as
expeditiously as possible keeping in view the fact that the
matter has been pending for a long time."
8 4. Before the learned arbitrator, three claims were raised
by the respondent, viz., Claim Item Nos. 3, 7and11. Claim Item
No. 3 related to extra items which has been rejected. Claim •
Item No. 7 related to loss of profit. Respondent raised a claim ('

of Rs. 27,77,714/-; an award of Rs. 12,20,289/-was made. So
c far as Claim Item No. 11 is concerned, which related to the
escalation of materials, an award of Rs. 90,005/- was made. It
appears that before the arbitrator parties agreed that the award.
be filed before this Court.
However, an objection has been filed by the appellant
D
wherein inter alia the jurisdiction of this Court to entertain the )'-
objection filed under the Arbitration Act, 1940 (for short "the 1940 f
Act") has been questioned.
5. Indisputably, the 1940 Act will apply in this case.
E 6. Section 2( c) of the 1940 Act read as under:
"2. In this Act, unless .there is anything repugnant in the
subject or context, -
*** *** ***
F I. -
"Court" means a Civil Court having jurisdiction to decide
the questions forming the subject-matter of the reference
if the snme 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;"
G
7. Although strictly; it is not necessary but we may also
notice the change in the definition of the term "court" brought in
by the Parliament in Arbitration and Conciliation Act, 1996 as -1
contained in Section 2(1)(e) therein which reads as under:
H
BHARAT COKING COAL LTD. v. M/S. ANNAPURNA 1129
CONSTRUCTION [S.8. SINHA, J.]

~ "2. (1) In this Part, unless the context other;wise requires, - A
t- *** *** ***

(e) "Court'' means the Principal Civil Court of Original
Jurisdiction in a district, and includes the High Court in
exercise of its ordinary original civil jurisdiction, having 8
jurisdiction to decide the questions forming the subject-
!<"
matter of the arbitration if the same had been the subject-
.,. matter of a suit, but does not include any civil court of a
grade inferior to such Principal Civil Court, or any Court of
Small Causes;" c
8. It is now a trite lawthatwhenevera·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
k
is anything repugnant in the subject and context" may in given D
>
situations lead this Court to opine that the legislature intended
a different meaning. [See State of Maharashtra v. Indian
Medical Association and Others (2002) 1 SCC 589 and
Pandey & Co. Builders (P) Ltd. v. State of Bihar and Another
(2007) 1 sec 4671 E
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. F

10. With the aforementioned background, we may notice
a few precedents operating in the field.
In State of Madhya Pradesh v. Mis. Saith and Skelton (P)
Ltd. [(1972) 1 sec 702], apart from appointing the arbitrator, G
this Court extended the time for making the award. It was held
that this Court would be entitled to entertain an application under
A- Section 14(2) read with Section 30 of the 1940 Act stating:
"18. According to Mr Shroff the Award should have been
H
1130 SUPREME COURT REPORTS [2008] 3 S.C.R.

A filed, not in this Court, but in the Court of the Addi. District
Judge, Mandsaur, as that is the Court which will have
jurisdiction to entertain the suit regarding the subject-matter
of the reference. We are not inclined to accept this
contention of Mr Shroff. It should be noted that the opening
B words of Section 2 are "In this Act, unless there is anything
repugnant in the subject or context". Therefore the
expression "Court" will have to be understood as defined
in Section 2( c) of the Act, only ifthere is nothing repugnant
in the subject or context. It is in that light that the expression
c "Court" occurring in Section 14(2) of the Act will have to be
understood and interpreted. It was this Court that appointed
Shri V.S. Desai, on January 29, 1971, by consent of parties
as an arbitrator and to make his Award. It will be seen that
no further directions were given in the said order which
will indicate that this Court had not divested itself of its
D
jurisdiction to deal with the Award or matters arising out of
the Award. In fact the indications are to the contrary. The
direction in the order, dated January 29, 1971, is that the
arbitrator is "to make his Award". Surely the law
contemplates further steps to be taken after the Award
E 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
F 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."
It was furthermore observed:
G "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 pending appeal before the High Court. Based upon
H Section 21, it was urged before this Court that the
BHARAT COKING COAL LTD. v. MIS. ANNAPURNA 1131
CONSTRUCTION [S.S. SINHA, J.]
~

... reference made by the. trial court, when the appeal was A
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 8
.. "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 c
"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 Sect ion 14(2)
where the arbitration Award could be validly filed."
11. The said principle was reiterated in M/s. Guru Nank D
" Foundation v. Mis. Rattan Singh and Sons [(1981) 4 SCC 634]
wherein it was opined:
"18 ... By the decision of this Court in the appeal the 2nd
respondent was removed as arbitrator and the 3rd
respondent was appointed as sole arbitrator. Indisputably, E
therefore, the arbitrator was appointed by this Court. The
order appointing the 3rd respondent as arbitrator gave a
further direction that the arbitrator shall enter upon the
-· reference within 15 days from the date of the Order of the
Court and he should try to dispose of the same as F
expeditiously as possible. The final Order was that the
appeal was disposed of in terms hereinabove indicated.
A contention that thereafter this Court was not in seisin of
the matter was urged relying upon the fact that the appeal
was disposed of by the Order of the Court and that there G
was no further proceeding before this Court. This
r
contention has merely to be stated to be rejected, as will
be presently pointed out. After the disposal of the appeal,
~.

CMP No. 896 of 1977 was presented to this Court for
clarification and/or modification of the Order of the Court H
1132 SUPREME COURT REPORTS [2008] 3 S.C.R.

dated January 5, 1977. This Court by its Order dated
.-
A ~
February 10, 1977, gave further directrons and a specific
time-limit was fixed by this Court directing the 3rd
respondent· as arbitrator to conclude the pro~eedings
within four months from the date of Order of the Court.
B Even with regard to the conduct of proceedings this Court
directed that the 3rd respondent should proceed with the
reference from the stage where it was left by the 2nd '(
respondent and that not only that he may permit additional
evidence to be led but he must consider the pleadings
c and evidence already placed before the previous arbitrator.
This will indisputably show that this Court had complete
control over the proceedings before the arbitrator."
12. Both the aforementioned decisions, therefore, proceed
on the basis that the court had complete control over the
D proceedings of the arbitrator. In the instant case, however, the !--

matter came up before this Court whence an arbitrator had
already been appointed and an award had been made. An
arbitrator was appointed by this Court while setting aside the
said award particularly in view of the fact that construction of the
E contract was in question. The court did not and could not retain
any control over the proceedings of the arbitrator.
13. Thus, a distinction must be borne in mind in a case
where this Court had no control over the proceedings and the
case in which control of proceedings of the arbitrator had been
F retained. In the former case, having regard to the definition of
·-
the term "court" as contained in Section 2(c) of the 1940 Act,
award must be filed before a court which has the requisite
jurisdiction thereover.
14. We may notice that such a view has been taken by this
G
Court in National Aluminium Co. Ltd. v. Pressteel &
Fabrications (P) Ltd. and Another [(2004) 1 SCC .540] stating:
~

"9 ... In regard to the forum before which the application for '

modification or setting aside the award is concerned, we
H find no difficulty in coming to the conclusion that in view of
BHARAT COKING COAL LTD. v. MIS. ANNAPURNA 1133
CONSTRUCTION [S.B. SINHA, J.]
~

+- the provisions of Section 34 read with Section 2( e ) of the A
1996 Act it is not this Court which has the jurisdiction to
entertain an application for modification of the award and
it could only be the principal civil court of original jurisdiction
as contemplated under Section 2( e ) of the Act, therefore,
in our opinion, this application is not maintainable before B
"" this Court."
,_
15. Yet again in State of Goa v. Western Builders [(2006)
6 SCC 239], this Court opined:
"21. In National Aluminium Co. Ltd. v. Pressteel & c
Fabrications (P) Ltd. unilateral appointment of the
arbitrator under the Arbitration Act, 1940 was challenged.
This Court in the said appeal after hearing the parties
appointed a sole arbitrator. Before the sole arbitrator both
the parties by consent agreed that the proceedings should
" be governed by the provisions of the Arbitration and
D
Conciliation Act, 1996. The arbitrator proceeded on that
basis and gave a fina~ award. That final award was
challenged. The questio arose whether the proceeding
shall be governed by the 1940 Act or by the 1996 Act?
And which is the appropriate court. The dispute prolonged E
for nearly 16 years. This Court dismissed·the appeal and
held that in the present case proceedings should go on
under, the provisions of the Act, 1996 though the dispute
-· arose prior to coming into force of the Act, 1996, the
appropriate forum for challenging the award under Section F
34 was the Principal Civil Court of original jurisdiction as
contemplated under Section 2( e) of the Act, 1996."
16. Ordinarily, although there may be cases to the contrary,
the principle that the right of appeal should not be taken away,
G
should be applied. There might be strong reason to deny the
,, .. suitor a right of appeal.
17. In Pandey & Co. Builders (P) Ltd (supra), however, in
the fact situaticn obtaining therein, this Court held :
H
1134 SUPREME COURT REPORTS [2008] 3 S.C.R.

A "23. In this case, it is not necessary for us to go into the
question as to whether sub-section (3) of Section 37 of
the 1996 Act would debar an appeal from appellate order
passed under sub-section (2) of Section 37 thereof. The
consequences of the statutory embargo would ensue but
B then the question will have to be considered as and when
occasion arises· therefor. Sub-section (2) of Section 37 of
the 1996 Act prescribes for an .appeal to a court. We do
not see any reason as to why having regard to its plain I
anguage, the definition of "court" shall not be put into
c service. It may be true that the interpretation clause provides
for "unless the context otherwise requires". If application
of the interpretation clause contained in Section 2 of the
1996 Act shall lead to anomalous and absurd results, one
may not stick to the definition but we do not think that such
a case has been made out."
D
18. Reliance has also been placed by Mr. Ajit Kumar Sinha,
learned counsel appearing on behalf of the appellant on an order
of this Court dated 22.08.1997 in M/s. Bharat Coking Coal Ltd.
v. H.P Biswas & Company [Civil Appeal No. 3504 of 1992]
E wherein it was directed:
"In this civil appeal an award has been filed by the Arbitrator
appointed by this Court in a proceeding arising out of
Section 8 of the Arbitration Act before the trial Court.
However, as the appeal arises out of the proceeding under
F the aforesaid section before the trial court, the appointment
of the arbitrator by this Court was in substitution of the
earlier order passed by the Trial Court. Hence the
appropriate court in which the award is to be filed will be
the Court of First Sub-Judge, Dhanbad. Therefore, the
G Registry is directed to send the original award as well as
the entire records to the First Sub-Judge, Dhanbad, Bihar.
On receipt of copy of this Order, original award and the
records by the trial court, notice will be issued to the parties
concerned by the trial court and within 30 days of receipt
H of such notice objection, if any, under Section 30 of the
BHARAT COKING COAL LTD. v. MIS. ANNAPURNA. 1135
CONSTRUCTION [S.B. SINHA, J.]

Arbitration Act .will be filed by the concerned objector. A
Thereafter the trial court will proceed further in accordance
with law. The trial court shall decide the objections, if any,
of the parties concerned to the request for making the
award a rule of the court. The trial court will dispose of the
proceedings at an early date preferably within a period of B
six months from today ... "
19. A Similar opinion was rendered yet recently by a Bench
of this Court in Garhwa/ Manda/ Vikas Nigam Ltd. v. Mis.
Krishna Travel Agency [IA 1 & 2 in SLP (C) No. 18344 of 2004
dated 24.01.2007] wherein it was held: C
"Apart from these four cases, which have been brought to
our notice, the position of law is very clear that in case the
argument of learned counsel is accepted, that would mean
that in every case where this court passes an order, be it
0
on appeal, from the order passed by the High Court under
Section 11 (6) of the Arbitration and Conciliation Act, 1996,
this court will become a Principal Civil Court of original
jurisdiction. If the argument is further taken to its logical
conclusion that would mean that the parties will have to E
approach this Court by making an application under
Section 34 i.e. for setting aside the award. The expression
'Court' used in Section 34 of the Act will also have to be
understood ignoring the definition of 'Court' in the Act.
There is another facet of the problem. The party will be
deprived of the right to file an appeal under Section 37(i)(b) F
of the Arbitration and Conciliation Act. This means that a
valuable right of appeal will be lost. Therefore, in the
scheme of things, the submission of the learned counsel
cannot be accepted ... "
G
[See also the comments in 'Arbitration, Conciliation and
Mediation', Second edition by Shri VA. Mohta, page 82]
20. It is also not a case where this Court has exercised its
jurisdiction under Sub-section (6) of Section 11 of the Arbitration
and Conciliation Act, 1996 as was done in Mcdermott H
1136 SUPREME COURT REPORTS · [2008] 3 S.C.R.

A International Inc. v. Burn Standard Co. Ltd. and Others ((2005) ~
10 SCC 353]. A similar view has been taken in ITC Ltd. v.
George Joseph Fernandes and Another [(2005) 10 SCC 425].
21. As the question of jurisdiction of a Court is involved
herein, we are of the opinion, by consent of the parties also,
8 jurisdiction cannot be assumed by this court.

22. We, therefore, for the foregoing reasons as also the ~
binding precedents are of the opinion that this Court has no
jurisdiction to entertain these applications. The Registry,
c therefore, is directed to send the records to the Court of District
Judge, Dhanbad who in turn is directed to transfer the case to a
court having appropriate jurisdiction. The court concerned is
requested to dispose of the objection filed by the appellant
herein as expeditiously as possible and not later than three
months from the date of receipt of records. t"
0 I
23. The applications are disposed of with the
aforementioned directions. No costs.
N.J. Applications disposed of.

t-