Ganjam Trading Co. Pvt. Ltd. vs Panther Investrade Ltd. And Anr.
2002 Latest Caselaw 725 Bom

JUDGMENT

S.A. Bobde, J.

1. Heard Mr. Thakkar, learned senior counsel for the inter-vener. Intervention application is allowed.

2. The petition under Section 9 of the Arbitration and Conciliation Act, 1996, is moved by Ganjam Trading Co. Pvt. Ltd, the petitioner abovenamed, seeking, inter alia, a direction to the respondents, i.e., Panther Investrade Ltd. and Ketan Parekh to forthwith refund or furnish security in the sum of Rs. 25 crores paid to the first respondent, i.e., Panther Investrade Ltd. by the petitioner for the purchase of certain shares in terms of an agreement dated January 19, 2001, entered into between the petitioner and respondent No. 1. Admittedly, the agreement dated January 19, 2001, contained an arbitration clause being clause No. 7. The petitioner has made a statement that it intends to invoke the arbitration clause for deciding the dispute between the parties. In the meanwhile, it seeks interim protection.

3. The transaction giving rise to the dispute appears to be as follows :

Respondent No. 1 (hereinafter referred to as "PIL") appears to have represented to the petitioner that there was an opportunity of acquiring a controlling interest in some good media and entertainment company. The petitioner is apparently in the media and entertainment business. The respondents, therefore, told the petitioner that an investment of Rs. 25 crores would be needed. On the very next day the respondents informed the petitioner to ensure payment of Rs. 25 crores on that very day.

4. There is no dispute that the petitioner paid the said sum of Rs. 25 crores to the respondent in pursuance of the agreement dated January 19, 2001, signed on behalf of the petitioner by one Ashok Sanghavi and on behalf of the respondents by one Kirtikumar Parekh. The recitals to the agreement are that the respondents are in a process of acquiring 6,25,000 equity shares of B4U Multimedia International Ltd. at the rate of Rs. 400 per share. The terms of the agreement record the receipt of Rs. 25 crores and a statement that PIL has informed and represented to the petitioner that they are the absolute owners of the shares and that they have good right to deal with and dispose of the same. It is this agreement which contains the arbitration clause.

5. According to the petitioner, the respondents have not yet delivered the shares agreed to be purchased by them. The respondents rely on a letter dated March 29, 2001, addressed to the petitioner. That letter contains a statement that the respondents are forwarding shares equal to the value of Rs. 25 crores along with its respective transfer deeds. At the bottom of that letter there appears to be the word "recd." followed by some initial purporting to be the signature of some unidentified person. According to the respondents, this is, the proof of the fact that they have delivered the shares. This position is very strongly denied by the petitioner. Prima facie, the assertion on behalf of the respondents that they have delivered the shares to the petitioner appears to be doubtful. I am, therefore, inclined to direct respondent No. 1 to secure the claim of the petitioner, if the petitioner initiates arbitration within a period of one month from today.

6. This takes us to the question of tenability of the petition against the second respondent, Ketan Parekh, who is a notified party under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 (hereinafter referred to as "the Special Courts Act"). According, to Parekh, he is not liable to be proceeded against under the Arbitration and Conciliation Act, 1996, on the ground that he is a notified person under the Special Courts Act and by virtue of the provisions of that Act, in particular Section 9B this court would not be entitled to exercise powers under the Arbitration and Conciliation Act, 1996.

7. Mr. Dwarkadas, learned senior counsel for the petitioner submits that the petitioner is entitled to invoke the jurisdiction of this court in view of Section 42 of the Arbitration and Conciliation Act, 1996, which reads as follows :

"42. Jurisdiction.--Notwithstanding anything contained elsewhere in this part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court."

8. According to learned counsel by virtue of the aforesaid provision which is contained in an Act of Parliament, enacted subsequent to the Special Courts Act this court alone would have jurisdiction over the arbitral proceedings.

9. It is, therefore, necessary to examine the legislative scheme in the context of which the rival submissions were made. The Special Courts Act was enacted to deal with irregularities and malpractices which led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. Under that Act a special court is established. The Act provides for the trial of such person by the special court and also provides for appointment of a custodian under the Act for cancellation of contracts fraudulently entered into and the cognizance of cases by the special court.

10. The persons liable to be tried under this Act are notified persons. Section 3 of the Special Courts Act provides for notifying a person for trial under the Act. Sections 3(1) and (2) read as follows :

"3. (1) The Central Government may appoint one or more custodians as it may deem fit for the purposes of this Act.

(2) The custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after April 1, 1991, and on and before June 6, 1992, notify the name of such person in the Official Gazette,"

11. In the present case, there is no dispute that Parekh is a notified person. Section 7 which deals with jurisdiction of the special courts reads as follows :

"7. Jurisdiction of special courts.--Notwithstanding anything contained in any other law, any prosecution in respect of any offence referred to in Sub-section (2) of Section 3 shall be instituted only in the special court and any prosecution in respect of such offence pending in any court shall stand transferred to the special court."

12. Section 9B of the Special Courts Act with which this court is primarily concerned in this case, reads as follows :

"9B. Powers of the special court in arbitration matters.--(1) The special court shall have the jurisdiction and powers of a court conferred under the Arbitration Act, 1940 (10 of 1940), to decide any question forming the subject matter or a reference relating to any matter or claim mentioned in Sub-section (1) of Section 9A.

(2) Every suit or other proceeding (other than an appeal) in relation to any matter or claim referred to in Sub-section (1) of Section 9A pending before any court and governed by the Arbitration Act, 1940 (10 of 1940). Immediately before the date of commencement of the Special Court (Trial of Offences Relating to Transactions in Securities) Amendment Act, 1994, shall stand transferred on that date to the special court."

13. On a plain construction of Section 9B, it is clear that it is a special court alone which has the jurisdiction and powers of the court conferred under the Arbitration Act, 1940, to decide any question forming the subject matter of the reference relating to any matter of claim mentioned in Sub-section (1) of Section 9A of the Act. The claim in the present petition is covered by Section 9A of the Special Courts Act.

14. The next question raised by Mr. Janak Dwarkadas, learned counsel for the petitioner regarding the continued applicability of Section 9B subsequent to the enactment of the Arbitration and Conciliation Act, 1996. As observed earlier, the contention on behalf of the petitioner is that this court, by virtue of Section 42, is conferred with or in any case retains its jurisdiction to decide over arbitral proceedings and all applications arising out of an arbitration agreement. It is not disputed that before the enactment of the Arbitration and Conciliation Act, 1996, it is the special court alone which had the jurisdiction and powers of a court conferred under the Arbitration Act, 1940. The question, therefore, is whether the subsequent enactment makes any difference. In my view it does not.

15. A comparison of Section 31(4) of the Arbitration Act, 1940, with Section 42 of the Arbitration and Conciliation Act, 1996, shows that the two provisions are almost identical and in any case in pari materia. Section 31(4) of the Arbitration Act, 1940, reads as follows :

"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 this Act, has been made in a court competent to entertain it, that court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference, and the arbitration proceedings shall be made in that court and in no other court."

16. Section 42 of the Arbitration and Conciliation Act, 1996 reads as follows :

"Notwithstanding anything contained elsewhere in this part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court."

17. I see no material difference in the aforesaid two provisions. Therefore, if under Section 9B of the Special Courts Act the powers of the court under the Arbitration Act, 1940, were conferred on the special court the situation must be the same even after the enactment of the Arbitration and Conciliation Act, 1996.

18. Mr. Dhond, learned counsel for respondent No. 2 and Mr. Joshi, learned counsel for the custodian relied and in my view rightly on Section 8 of the General Clauses Act, 1897, which reads as follows :

"8 Construction of references to repealed enactments.--(1) Where this Act, or any Central Act or regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted with or without modification, any provision of a former enactment, then references in any Central Act, or in any regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted."

19. Applying Section 8 to the legislative scheme under consideration, it is clear that : firstly, section as of the Arbitration and Conciliation Act, 1996, repeals the Arbitration Act, 1940. The 1940 Act has been re-enacted with modification by the 1996 Act, and secondly, the Special Courts Act contained references to the 1940 Act. This being the position it must follow that the reference to the Arbitration Act, 1940 in Section 9B of the Special Courts Act must be construed as a reference to the re-enacted Act of 1996, There is no doubt that it must be so construed unless a different intention appears. I am of the view, however, that there is nothing in the legislative scheme which shows a different intention. The Arbitration and Conciliation Act, 1996, has completely replaced the Arbitration Act, 1940. The intention of Section 9B of the Special Courts Act was to confer the powers of a court under the 1940 Act on the special court. On a repeal and re-enactment of the 1996 Act, the reference in Section 9B to a court under the Arbitration Act, 1940, must be construed as a reference to the court under the 1996 Act.

20. Therefore, in my view where a person has been notified under Section 3(2) of the Special Courts Act and he is said to have entered into an arbitration agreement a court as defined by the Arbitration and Conciliation Act, 1996, does not have jurisdiction to entertain arbitration proceedings arising out of an arbitration agreement entered into by such a notified person.

21. Mr. Dhond next contended that Section 42 of the Act is not a section which is intended to confer a jurisdiction on a court as defined by the Arbitration and Conciliation Act, 1996. According to learned counsel, Section 42 merely provides that where an application has been made to a court, then that court alone would have jurisdiction over arbitral proceedings and all subsequent applications arising out of the same arbitration agreements. In other words, all such proceedings and applications would have to be made to that court and no other court.

22. This submission, is fully supported by a reading of Section 42 read with Section 2(e) of the Act, which defines court. Section 2(e) of the Arbitration and Conciliation Act, 1996, reads as follows :

"2. (e) 'court' means the principal civil court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade interior to such principal civil court, or any Court of Small Causes."

23. Reading Section 2(e) of the 1996 Act as part of Section 42 of the Act of 1996, it is clear that Section 42 would operate when "the application under this part has been in a court", i.e., a court which has jurisdiction to decide the question forming the subject matter of the arbitration, then all subsequent application and arbitral proceedings shall be made to that court and no other court. In this view of the matter also there is no merit in the submission that this court has jurisdiction to entertain an application under Section 9 of the Arbitration and Conciliation Act, 1996, notwithstanding the provision of Section 9B of the Special Courts Act. In this regard, it would be important to note the intention of Parliament in making the Special Courts Act a self-contained code. Section 13 of the Special Courts Act reads as follows :

"13. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any court, Tribunal or other authority."

24. In this view of the matter, it is not necessary to consider the other submissions made on behalf of the petitioner that though the arbitration agreement has been signed for and on behalf of respondent No. 2, Parekh, being the person behind the company the arbitration agreement should be taken to be signed by him.

25. In the result, the petition is allowed in terms of prayer Clause (d)(iii) against respondent No. 1 and dismissed against respondent No. 2. Prayer Clause (d)(iii) reads as under :

"(d) That in the event of it being found that the first respondent has failed to acquire the said shares, pursuant to the said agreement dated January 19, 2001, this honourable court be pleased to :

(iii) Order and/or grant an injunction restraining the respondents from any manner alienating transferring, selling and disposing of its properties and assets."

26. It is made clear that this judgment will not affect the rights or any other financial institutions such as the Bank of India, etc., represented by Mr. Nitin Thakkar, learned counsel for the Bank of India.

27. P. A. to give ordinary copy of this order to the parties concerned.