Supreme Court of India
THE STATE OF JHARKHAND & ORS.versusMIS HINDUSTAN CONSTRUCTION CO. LTD.
- Citation
- 2017 INSC 977
- Decided
- 14 December 2017
- Disposal
- Disposed off
- Bench
- DIPAK MISRA
Holding
The Supreme Court cannot assume original jurisdiction to entertain an application for making an award merely because it retains control over the arbitral proceedings; jurisdiction remains with the court where the first application in the reference was filed under Section 31(4).
Summary
The State of Jharkhand appealed against an award made by an arbitrator appointed by the Supreme Court, contending that the Court could not entertain an application to make the award a rule of court merely because it retained seisin over the arbitration. The Supreme Court examined the scope of Section 31(4) of the Arbitration and Conciliation Act, 1996, and held that retaining control does not convert the Court into a court of first instance. The Court clarified that jurisdiction to deal with post‑award objections lies with the court where the first application in the reference was made, and that the Supreme Court cannot curtail a party’s statutory right of appeal. Consequently, the appeal was dismissed and the matter was ordered to be dealt with by the appropriate civil court.
Issues considered
- Whether the Supreme Court can assume original jurisdiction to entertain an application for making an arbitral award as a rule of court when it retains control over the arbitration proceedings.
- Whether Section 31(4) of the Arbitration and Conciliation Act, 1996, confers exclusive jurisdiction on a superior court that has retained seisin over the arbitration.
- Whether the right of appeal under the Act can be extinguished by treating the Supreme Court as the court of first instance.
Legislation cited
- Arbitration and Conciliation Act, 1996s. 14(2), s. 20, s. 2(c), s. 2(e), s. 30, s. 31, s. 31(1), s. 31(2), s. 31(3), s. 31(4), s. 33, s. 34, s. 39, s. 42, s. 8
Subjects
ArbitrationJurisdictionSection 31(4)Award filingSupreme CourtOriginal jurisdictionRight of appealSeisinRule of CourtArbitration Act 1996
Judgment
[2017] 13 S.C.R. 1009
THE STATE OF JHARKHAND & ORS. A
v.
MIS HINDUSTAN CONSTRUCTION CO. LTD.
(Civil Appeal No. I 093 of2006)
DECEMBER 14,2017 B
[DIPAK MISRA, CJT, A.K. SIKRI, A.M. KHANWILKAR,
DR. D.Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]
Arbitration and Conciliation Act, 1996: ss. 31, 30 and 33 -
Jurisdiction of the Courts - Entertainability of application by
Supreme Court for making an award passed by the arbitral tribunal,
c
when it retains seisin over arbitral proceeding, as Rule of the Court
- Held: Superior court is not expected in law to assume jurisdiction
on the foundation that it is a higher court and further opining that
all contentions are open - Solely because a superior court appoints
the arbitrator or issues directions or has retained some control over D
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 s. 31 (4) - This Court cannot curtail the right of
a litigant to prefer an appeal by stating that the doors are open to
E
this Court and to consider it as if it is an original court - When
arbitrator is not appointed under the Act and the matter is challenged
before the High Court or, Supreme Court and, eventually, an
arbitrator is appointed and some directions are issued, it will be not
be appropriate to say that the superior court has the jurisdiction to
deal with the objections .filed u/ss. 30 and 33 - Jurisdiction of a F
Court conferred under a statute cannot be allowed to shift or become
flexible because of a superior courts interference in the matter in a
different manner.
Disposing of the appeal, the Court
HELD: 1.1 Section 31 of the Arbitration and Conciliation G
Act, 1996 deals with the jurisdiction of the Courts. Sub-section
(1) stipulates that subject to the provisions of the Act, an award
may be filed in any court having jurisdiction in the matter to which
the reference relates. Sub-section (2) Jays down that
H
1009
1010 SUPREME COURT REPORTS [2017] l 3 S.C.R.
A 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,
B
and by no other Court. IPara 47] 11044-D-F]
1.2 Interpreting section 31(4), the three-Judge Bench in
*K11mbha Mawji case 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
c in 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
D 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
E
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
F 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 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
G is completed or before the arbitration is commenced. There is
no conceivable reason that the legislature has intended to confine
the operation of sub-section (4) only to applications made during
the pendency of arbitration because the phrase "in any reference"
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1011
CONSTRUCTION CO. LTD.
is to be taken as meaning "in the course of a reference".[Para A
48) (1044-H; 1045-A-E)
1.3 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 B
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 definition of the term 'Court' in the dictionary
clause and the meaning of the word 'Court' as employed in Section c
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, the
construction placed in **Guru Nunak Foundation's cuse suffers
from a fundamental fallacy. The language used in Section 31(4) of
the Act commences with the non-obstante clause. The said part D
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 E
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 F
of the post award 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. The said original jurisdiction is not
available to this Court in respect of a dispute that finds mention G
in Article 262. [Para 49) (1045-F-H; 1046-A-D)
1.4 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. The Court has
H
1012 SUPREME COURT REPORTS [2017] 13 S.C.R.
A assumed the jurisdiction by interpreting the word 'Court' as used
in s. 31(4). Interpretation is not in accord with the language used
in the provision and the intention of the legislature. It is clear
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. [Para 51] [1047-C-D]
B
1.5 The statement that the door is being held wide ajar for
him to raise all contentions which one can raise in a proceeding
in an originating summons, is not correct because the superior
court is not expected in law to assume jurisdiction on the
foundation that it is a higher court and further opining that all
c 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
D 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.
E 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, the said principle is also contrary to what has
been stated in Kumbha Mawji. This Court may make a reference
to an arbitrator on consent but to hold it as a legal principle that
F it can also entertain objections as the original court will invite a
fundamental fallacy pertaining to jurisdiction. [Para 57] [1050-F-
G; 1051-A-C]
1.6 The Court that has jurisdiction to entertain the first
application is determinative by the fact as to which the court has
G the jurisdiction and retains the jurisdiction. 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
H filed under Sections 30 and 33. The jurisdiction of a Court
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1013
CONSTRUCTION CO. LTD.
conferred under a statute cannot be allowed to shift or become A
flexible because of a superior court's interference in the matter
in a different manner. [Para 58] [1051-E-G] [1051-E-G
1. 7 The direction would have been issued to list the matter
before the appropriate Bench. But it is not necessary since the
appellant-State has filed the objection before the Civil Court. If B
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 the stipulated period. The objections shall be
decided on their own merits. [Para 60] [1052-B]
State of Madhya Pradesh v. Saith and Skelton (P) Ltd. c
(1972) 1 SCC 702 : [1972] 3 SCR 233; **Guru Nanak
Foundation v. Rattan Singh and Sons [1982] 1 SCR
842 - Overruled.
Bharat Coking Coal Limited v. Annapurna Construction
(2008) 6 SCC 732 : [2008] 3 SCR 1124; State of West D
Bengal and others v. Associated Contractors (2015) 1
SCC 32 : [2014] 10 SCR 426; State of Rajasthan v.
Nav Bharat Construction Company (2) (2010) 2 SCC
182 : [2010] 1 SCR 312; Mcdem10tt International INC.
v. Burn Standard Co. Ltd. and others (2005) 10 SCC
353; State of Karnataka v. Union of India and another E
(1977) 4 SCC 608 : [1978] 2 SCR 1; A.R. Antu/ay v.
R.S. Nayak and another (1988) 2 SCC 602 : [1988] 1
Suppl. SCR 1; Garikapati Veeraya v. N. Subbiah
Chaudhry and others 1957 SCR 488 : AIR 1957 SC
540; Commissioner of Gijl Tax, Madras v. N.S. Getty F
Chettiar (1971) 2 SCC 741; Commissioner of Sales Tax,
State of Gujarat v. Union Medical Agency (1981) 1 SCC
51 : [1981] 1 SCR 870; Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and others (1998)
8 SCC 1 : (1998) 2 Suppl. SCR 359; *Kumbha Mawji
v. Dominion of India (Now the Union of India) (1953) G
SCR 878 : AIR 1953 SC 313; Punjab State Electricity
Board and others v. Ludhiana Steels Private Ltd. (1993)
1 sec 205 : (1992) 3 Suppl. SCR 275; Ct. A. Ct.
Nachiappa Chettiar and others v. Ct. A. Ct.
Subramaniam Chettiar (1960) 2 SCR 209 : AIR 1960
H
1014 SUPREME COURT REPORTS (2017) 13 S.C.R.
A SC 307; State of Karnataka v. State of Tamil Nadu and
others (2017) 3 SCC 362 : [2016) 8 SCR 499; State of
Orissa v. Government of India and another (2009) 5
SCC 492 : [2009) 1 SCR 992; Networking of Rivers,
Jn re (2012) 4 SCC 51 : [2012) 1 SCR 1118; Prem
Chand Garg and another v. The Excise Commissioner,
B
UP and others [1963) Supp. l SCR 885 : AIR 1963
SC 996; Shiv Shakti Coop. Housing Socie(v, Nagpur v.
Swarey Developers and others (2003) 6 SCC 659 :
[2003) 3 SCR 762; Vikas Yadav v. State of Uttar Pradesh
and others (2016) 9 SCC 541 : [2016] 8 SCR 872;
c Nahar Industrial Enterprises Limited v. Hong Kong and
Shanghai Banking Corporation (2009) 8 SCC 646 :
[2009] 12 SCR 54 - referred to.
Case Law Reference
[2008) 3 SCR 1124 referred to Para6
D
[2014) 10 SCR 426 referred to Para6
[2010] 1 SCR 312 referred to Para6
(2005) 10 sec 353 referred to Para7
[1978] 2 SCR 1 referred to Para 10
E
[1988] l Suppl. SCR 1 referred to Para 10
[1957] SCR 488 referred to Para 10
(1971) 2 sec 741 referred to Para 11
F [1981] l SCR 870 referred to Para 11
[1998] 2 Suppl. SCR 359 referred to Para 11
[1953] SCR 878 referred to Para 12
[1992] 3 Suppl. SCR 275 referred to Para 12
G [1960] 2 SCR 209 referred to Para 16
[2016] 8 SCR 499 referred to Para 49
[2009] 1 SCR 992 referred to Para 49
[2012] 1 SCR 1118 referred to Para 49
H [1963] Supp. 1 SCR 885 referred to Para 54
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1015
CONSTRUCTION CO. LTD.
[2003] 3 SCR 762 referred to Para 56 A
[2016] 8 SCR 872 referred to Para 56
[2009] 12 SCR 54 referred to Para 56
[1972] 3 SCR 233 overruled Para 59
[1982] 1 SCR 842 overruled Para 59 B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1093
of2006.
From the Order dated 06.08.2002 of the High Court of Jharkhand
at Ranchi in Arbitration Appeal No. 6 of 2002.
c
Ajit Kumar Sinha, Sr. Adv., Gopal Prasad, Devashish Bharuka,
Ameyavikrama Thanvi, Ravi Bharuka, Jayesh Gaurav, Advs. for the
Appellants.
K. V. Viswanathan, Sr. Adv., Jayant K. Mehta, Prateek Kumar,
Anushak Sharda and Ms. Sneha Janakiraman (for Khaitan & Co.),Advs. D
for the respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI 1. 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 E
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:-
"Whether this Court can entertain an application for making the
award as Rule of the Court, even if it retains seisin over arbitral F
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 G
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 H
1016 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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 '>ub-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 in an arbitration
B
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
c 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
D proqeedings 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.4of1996- State of Jharkhand and others vs. Ml
E s. Hindustan Construction Company Limited filed by the appellant
on April 10, 1996 in the court of Sub-Judge, 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
F Arbitrator in consultation with the parties.
(iv) The parties shall appear before the learned Arbitrator on
February 5, 2013. We reauest the learned Arbitrator to conclude
the aforesaid arbitration proceedings expeditiously and further
observe that the award shall be filed before this Court."
G
[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
H the claim on merits. We observe accordingly."
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1017
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
5. Learned arbitrator concluded the arbitration proceedings and A
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.
B
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 Coking Coal Limited
v. Annapurna Constrnction' and State of West Bengal and others v. C
Associated Contractors' 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 rigbt 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 D
the said submissions, heavy reliance was placed on State ofRajasthan
v. Nav Bharat Construction Company (Z)' .
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 others' and further E
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. The Division Bench referred to the principle enunciated in
Associated Contractors (supra) wherein the three-Judge Bench had
opined that this Court cannot be considered to be a Court within the F
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.' and
Guru Nanak Foundation v. Rattan Singh and Sons' wherein it has
been held that when an arbitrator is appointed by this Court and further G
1
r2008) 6 sec 732
'(2015) 1 sec 32
'r201oi2 sec 182
• (2005) 10 sec 353
s (1972) 1 sec 702
'(1981) 4 sec 634 H
1018 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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
B 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.
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.
c l 0. 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 ofappeal 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
D 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
E 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, 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
F on State of Karnataka v. Union of India and another', A.R. Antulay
v. R.S. Nayak and another" and Garikapati Veeraya v. N. S11bbiah
Choudhry and others'. 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
G in Saith and Skelton (supra) and G11r11 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.
7
(1977)4 SCC608
"(1988) 2 SCC602
H ' 1957 SCR 488 : AIR 1957 SC 540
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1019
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
11. Mr. Viswanathan, learned senior counsel appearing for the A
respondent, in his tum, contends that Section 2( c) of the Act defines
Court and the definition when read in 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 Chettiar' 0 , B
Commissioner of Sales Tax, State of G11jarat v. Union Medical
Agency", Saith & Skelton (supra) and Whirlpool Corporation v.
Registrar of Trade Marks, M11mbai and others". 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 c
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
D
superior court. It is his submission that when this Court retains control
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 G11r11
Nanak Fo11ndation (supra). According to him, the submission advanced
on behalf of the appellants that they would lose the right of appeal has E
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 F
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 G
of superior courts has to be given primacy. To sustain the said proposition,
"(1971) 2 sec 741
11
(1981)1 SCCS!
12 (!998) s sec 1
H
1020 SUPREME COURT REPORTS [2017] 13 S.C.R.
A he has placed reliance upon Kumbha Mawji v. Dominion of India
(Now the Union of India)". 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
B
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 Gur11 Nanak Foundation (supra) and the principal reason
in the said authority relates to the definition of "Court" under Section
c 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 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
D
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
E 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:-
F "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
G may have to be given a 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
" 1953 SCR 878 : AIR 1953 SC 313
"(1993) l SCC205
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1021
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
or context", or "unless the context otherwise requires". Even in A
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 B
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 c
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 D
context, the Court held:-
" 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 E
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:-
F
"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 G
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
H
1022 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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
Chettiar 15 and placing reliance on the same, expressed the view that
B 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 applicatiop 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
c 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
D 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 arbitrator and the
evidence led before him were to be ignored. That led the first respondent
E 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
F 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
G 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
H " (1960) 2 SCR 209 : AIR 1960 SC 307
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1023
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJ!]
already been filed by both sides before the earlier arbitrator Mr A
Nanda. Jfany 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."
B
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
c
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 D
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
followingquestion:-
"The narrow question in this case therefore is: in view of the E
circumstances herein delineated, which is the court which would
have 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 F
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 ifthere is anything repugnant in the subject or G
context, the dictionary meaning may not be applied to the
expression "court". Assuming that there is nothing repugnant in
the subject or context
I
the expression "court" in the Act would
mean that civil court which would have jurisdiction to decide the
question forming the subject-matter of the reference ifthe same
H
1024 SUPREME COURT REPORTS (2017] I 3 S.C.R.
A had been the subj eel-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
B
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 comprehend appellate court in
which the award can be filed but it was finally resolved in the decision in
c 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
D "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
E 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 contained in sub-section (4) will have
an overriding effect in relation to the filing of the Award ifthe conditions
F 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
G which an application has been made in any reference and that court is
competent to entertain as the court havingjurisdiction 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
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1025
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI)
but simultaneously ousts the jurisdiction of any other court which may as A
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 (I) 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
B
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. c
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 sub-
section (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 D
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 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 E
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 F
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 G
entertain the award. The two-Judge Bench placed reliance on Saith
and Skelton (supra) and expressed that both on principle and on authority,
this Court alone had the jurisdiction for filing of the award.
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1026 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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
B such an application has been made to a court, that court would have the
jurisdiction to entertain such an application. ExplainingKumbha 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
c 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".
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",
D
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
E the contention canvassed on behalf of the appellant. In fact the
decision in Kumbha Mawji case was further explained by this
Court in Union ofIndia v. Surjeet Singh Atwa/1 6 • 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
F 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 Maw) i 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
G 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
"1969 c2J sec 211
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1027
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
reference" as implying "in the course of a reference" an application A
under Section 34 is not an application in a reference within the
meaning of the phrase as elaborated in Kumbha Mawji case.
The Court took nb1ice 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 B
that a proceeding earlier to the reference in a court would clothe
that court with such jurisdiction as to renderthe provision contained
in Section 31(4) otiose."
The aforesaid analysis only shows that the two-Judge Bench
expressed the opinion that the principles stated inKumbha Mawji would
not help in answering the contention canvassed on behalf of the appellant C
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 D
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 opined that in an identical situation E
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 Vi?eraya (supra) that the right ofappeal 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 /is commences, right is not F
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 G
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."
H
1028 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 26. We have extracted the aforesaid passage to highlight how the
principle laid down in K11mbha Mawji has been distinguished in the
case of G11r11 Nanak Foundation (supra). To appreciate the reasoning,
it is necessary to 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:-
B
"(!)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
C 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 sub-section (4) of the Act is
limited to applications under the Act during the pendency of the
arbitration proceedings only."
D 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
E 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 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
F 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
G 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
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1029
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
judgment of the learned single Judge by opining that there had been no A
proper application under Section 14(2) of the Act before the High Court
of Calcutta and, 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 B
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 c
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 D
determined with reference to the 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)
oftheAct, 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 E
31 of the Act, the Court, after reproducing the provisions, opined:-
" 11. Sub-section (I) 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 F
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 G
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
H
1030 SUPREME COURT REPORTS [2017] 13 S.C.R.
A party concerned an obligation to file all applications in one court
but vesting exclusive jurisdiction 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 sub-section determines the jurisdiction of the
B 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
c 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
D 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
E 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"."
F [Underlining is ours]
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
G 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 sub-section
suggested for the appellant, not only would an application made
after the award was pronounced be excluded from sub-section
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1031
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
(4) but also an application made before the commencement of A
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 B
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- c
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 is
D
"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 E
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 F
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."
G
[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 Atwa/
(supra). In the said case, the three-Judge Bench was dealing with the
H
1032 SUPREME COURT REPORTS [2017] 13 S.C.R.
A issue whether the application made by the appellant therein under Section
34 of the Act was an application in a reference within the meaning of
Section 31 (4) of the Act. Placing reliance on K11mbha Mawji, the Court
held:-
"5 .... There are different sections in the Arbitration Act whereby
B 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
c 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.
D 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."
E
Andagain:-
"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
F 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 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
G 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
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1033
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
has no jurisdiction to go into the matter at all and merely because A
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 B
of the Calcutta High Court in Chotey/a/ Sham/al v. Cooch Behar
Oil Mills Ltd-"; Brittannia Building & Iron Co. Ltd. v. Gobinda
Chandra Bhattachar.va'" and Basanti Cotton Mills Ltd. v.
Dhingra Brothers"."
32. From the aforesaid two judgments, it is crystal clear that
"reference" has been given a wider meaning in Kumblw Mmvji and the c
same has been followed in Surjeet SinghAtwa/ (supra). In Guru Ncmak
Foundation (supra), the two-Judge Bench distinguished the decision in
Kumbha Muwji 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 D
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 Bharut Co11stmctio11 Compll11y (supra) E
and Burn Standard Co. Ltcl. (supra). In Bum Standurd Co. Ltd., the
three-Judge Bench referred fo 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 F
this Court and, accordingly, it directed that the objection petition under
Section 34 could have been filed only in this 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.
G
33. At this juncture, we think it apt to immediately refer to the
recent decision in Associated Contractors (supra). The three-Judge
"!LR (1951) Cal 418
'"64 CWN 325
"AIR 1949 Cal 684
H
1034 SUPREME COURT REPORTS [2017] 13 S.C.R.
A Bench was dealing with the meaning of"Court" under Section 2(l)(e)
of the 1996 Act. Answering the reference, the three-Judge Bench
referred to Section 2( I)(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(l)(e) is
B 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( l )(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
c could be "court" for the purpose of Section 2(l)(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
D itself is open to doubt, as the Supreme Court exercisingjurisdiction
under Article 136 is not 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
E 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
F 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
G 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.'", SCC at p. 542, para 59). Section 42
'"(2006) 11 sec s21
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1035
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI)
is also markedly different from Section 31( 4) of the 1940 Act in A
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
B
all these reasons, we hold that the decisions under the 1940 Act
would not obtain under the 1996 Act, and the 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
c
agreement" are words of wide import and would take in al:
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 D
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 E
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." F
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 umpire and had also held G
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 ofRajasthan filed an application for making the award Rule of
the court and at the same time, the respondent filed petition under Sections
H
1036 SUPREME COURT REPORTS (2017] 13 S.C.R.
A 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:-
B "'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
c 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 application of the
appellant for making the award a rule of the court must be filed in
D 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.
E 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
F 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. Naclriappa Chettiar (supra), the Court held
thus:-
G "'2 l. 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 Section 21, it was urged before this Court that
the reference made by the trial court, when the appeal was pending,
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1037
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJ!]
and the award made in consequence of such reference, were A
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 B
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 C
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 D
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 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 E
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 enqui1y but F
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 G
and all matters and proceedings connected therewith" for determination
by the two arbitrators named by the parties. The arbitrators began their
proceedings and passed an interim award which was filed before the
trial court. An objection was filed to set aside the award on the ground
H
1038 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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
B
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
c (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 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
D
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
E 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 ofanalysis, 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
f 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 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
G 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"
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1039
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJ!]
means court as defined by Section 2( c) of the Act. The argument on A
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
B
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:-
"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
c
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 D
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 E
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 F
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?"
G
40. Further analyzing the object of enacting Section 21 and the
intention behind the said Section, the Court ruled:-
"36. Having regard to the fact that the words used in Section 21
are substantially the same as those used in Schedule II, para l, of
H
1040 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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
B
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
c 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 ofany words qualifying the word "judgment" used in
D 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
E arbitration" cannot be subjected to the further limitation that the
said matter can be referred to arbitration ifit is not covered by the
judgment of the court. The effect of the section 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
F 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
G 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."
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1041
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
42. We may also note with profit that the Court addressed to A
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 ifthe suit is pending in the
trial court and a final judgment has not been pronounced by it, it is the
B
trial court which is competent to make the order of reference. Similarly,
if a suit has been decided, a final 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 c
taken to the appellate court, during the pendency of the appeal, it is the
appellate court that is competent to act under Section 2 l. 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
D
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 cornt. In that context, the Conrt held:- E
"39 .... In such a case it may perhaps be logically possible to take
the view that the 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 F
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 G
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
H
1042 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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
B
proceedings; if, on the other hand, they obtain a similar order of
referepce 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
c 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."
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
D 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
E expression "Court" occurring in Section 14(2) of the Act. True, in Saitlt
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. Nacltiappa Chettiar (supra) and applying to the superior courts
F 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. Nacltiappa 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,
G 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
H
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1043
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
been held in Saith and Skelton does not flow from the correct A
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 B
an application is made in any reference but also simultaneously ousts the
jurisdiction of any other court 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 c
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 D
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:-
E
"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 F
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. G
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
H
1044 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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)
B reads as follows:-
"(2) The arbitrators orumpire 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
c 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."
D 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 havingjurisdiction in the matter to which the
reference relates. 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
E 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
non-obstante clause, reads as follows:-
F "(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
G 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
K11mbha Mmvji (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
H
THE STATE OF JHARKHAND & ORS. v. M/S HINDUSTAN 1045
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
concerned an obligation to file all applications in one court for vesting A
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)
B
are intended to make that jurisdiction effective in three different ways,
( l) 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 c
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 and exclusive D
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 conunenced.
There is no conceivable reason that the legislature has intended to confine
the operation of sub-section (4) only to applications made during the E
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 F
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 definition of
the term 'Court' in the dictionary clause and the meaning of the word G
'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
H
1046 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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,
B
that court alone shall have the jurisdiction over the arbitration proceedings.
The purpose behind the said provision is to avoid conflict in the exercise
ofjurisdiction 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
c 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
D
Constitution. In Stale of Karnataka v. State of Tamil Nadu and
others'-', 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 13 l of the Constitution and analyzing the language employed
under Article 262, has held that the authority conferred under Article 32
E has its limitations when the /is 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 or disputes that find mention in
Article 262( l ). Thereafter, the Court referred to the authorities in State
F
of Orissa v. Government of India and another" and Networking of
Rivers, In re23 • In Networking ofRivers, 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
G 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 powerofSection 11 of the i 956Act in ousting the jurisdiction
of the courts in respect of any water dispute, which is otherwise to be
"(2017)3 sec 362
22 (2009) s sec 492
H "c201214 sec s1
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1047
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
referred to the tribunal, would not have any manner of application. The A
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 ofuse, distribution and control of water.
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 B
136 of the Constitntion 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 c
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 ofthe legislature. It is clear to us that the court competent D
to entertain the reference will have the jurisdiction to deal with the
objections to the award or any post award proceeding.
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 whic)l is statutorily provided. In Bharat Coking Coal E
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 F
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 G
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."
" (2002) i sec ss9
" (2007) i sec 467 H
1048 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 53. It is worthy to mention that in the said case, the two-Judge
Bench had distinguished G11r11 Nanak Fo11ndation 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
Constitution Bench decision in Garikapati Veeraya (supra) that lays
down that the legal pursuit of a remedy, suit, appeal and second appeal
B
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
c and from the date the /is 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
D
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 /is commences and the said right can be taken
E 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. Ant11/ay (supra). In the said
case referring to Prem Chand Garg and another v. The Excise
Commissioner, U.P and others" and relying on the same, Sabyasachi
Mukharji, J. (as His Lordship then was) stated:-
F
"50 .... The fact that the rule was discretionary did not alter the
position. Though Article 142( l) 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 lil of the Constitution. No question of
G inconsistency between Article 142( I) and Article 32 arose.
Gajendragadkar, J., speaking for the majority of the judges of this
Court said that Article 142( l) did not confer any power on this
Court to contravene the provisions ofArticle 32 of the Constitution.
H " 1963 Supp. I SCR 885 : AIR 1963 SC 996
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1049
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJ!]
Nor didArticle 145 confer power upon this Court to make rules, A
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 ofjustice".
But that is not to say that an order_ can be made by this Court B
which 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 lo 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 C
of the relevant statutory laws (emphasis supplied). The court
therefore, held that it was not possible to hold tha_t Article 142( l)
conferred upon this Court powers which could contravene the
provisions ofArticle 32."
55. In paragraph 91 of the said judgment, in the concurring opinion, D
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 E
or by specific laws enacted by the legislature. For instance, Article
129 confers all the powers of a conrt 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 F
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 G
or in the laws made by the 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
H
1050 SUPREME COURT REPORTS [2017) 13 S.C.R.
A Edition of"Words und Phrases" Vol. 23-Aat 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
B 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
c 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 ifliable to be carried away; (6)
D authority to decide the question involved, which is acquired by the
question being submitted to it by the parties for decision."
56. In Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj
Developers and others", it has been expressed that the right of appeal
is statutory and when conferred by a statute, it becomes a vested right.
E 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 Jlikas Yadav v. State of Uttar Pradesh and others". A
similar view has been expressed in Nahar Industrial Enterprises
Limited v. Hong Kong and Shanghai Banking Corporation".
F 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
G because the superior court is not expected in law to assume 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
"(2003) 6 sec 659
"(2016) 9 sec 541
H " (2009) s sec 646
THE STATE OF JHARKHAND & ORS. v. MIS HINDUSTAN 1051
CONSTRUCTION CO. LTD. [DIPAK MISRA, CJI]
appeal under Section 39 of the Act. Solely because a superior court A
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
B
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 c
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. InSurjit Singh Atwal (supra), a three-Judge Bench had opined D
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 ofa 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 ofreferring to the said authority is that the principle stated in E
Kumblta Mawji (supra) has been elaborated in Surjit Singlt 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 F
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 G
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 Saitlt and Skelton (supra) and G11r11 Nanak
Foundation (supra) do not lay the correct position oflaw and, accordingly,
H
1052 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 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
B 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.
c There shall be no order as to costs.
Nidhi Jain Appeal disposed of.
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